Legal – Page 19 – Workforce

January 22, 2019June 29, 2023

The 4th Nominee for the “Worst Employer of 2019” is … the Flagrant Farmer

I’ll let the EEOC do the heavy lifting on today’s nominee for the Worst Employer of 2019 (the 4th thus far):

A federal jury rendered a verdict … awarding $850,000 in compensatory and punitive damages to a female farmworker at Favorite Farms in Dover, Fla., who was raped by her supervisor and reported it to police and management that same day.…

The evidence at trial showed that management at Favorite Farms, which primarily grows strawberries, failed to properly investigate the complaint, and instead sent the victim home from work without pay the next work day. Favorite Farms took no action against the harasser, leaving him to supervise women in the fields, despite evidence that this was not the first complaint of sexual harassment. Instead, Favorite Farms continued retaliating against the victim and forced her to take a leave of absence.

If you permit a rapist to keep supervising your employees after an employee complains to you and the police that he raped her, and you further punish the complaining employee by suspending her without pay, you might be the worst employer of 2019.

Thanks to Eric Meyer for bringing the nominee to my attention.

Previous nominees:

The 1st Nominee for the Worst Employer of 2019 Is … the Philandering Pharmacist

The 2nd Nominee for the Worst Employer of 2019 Is … the Little Rascal Racist

The 3rd Nominee for the Worst Employer of 2019 is … the Barbarous Boss

January 17, 2019June 29, 2023

An Expensive Lesson on Religious Accommodations

A federal court jury in Miami has awarded a hotel dishwasher $21.5 million after concluding that her employer failed to honor her religious beliefs by repeatedly scheduling her on Sundays, and then firing her.The hotel argued that it had no idea that she was a missionary or had requested Sunday off. Her lawyer, however, disagreed. “There were letters in [her personnel] file and her pastor went down there.”

According to the South Florida Sun Sentinel, Marie Jean Pierre is a member of the Soldiers of Christ Church, a Catholic missionary group that helps the poor. She claimed that she hold her employer that she needed Sundays off for her missionary work. The hotel accommodate her for the first three years of her employment, but then began scheduling her on Sundays. After she advised that she would have to quit, the company again accommodated her scheduling request for another six years. Then, however, the hotel again changed her schedule to include Sundays. Pierre then provided a letter from her pastor explaining her religious need for the time off. The hotel, however, refused and ultimately fired her for unexcused absences.

Title VII requires an employer to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. An accommodation would pose an undue hardship if it would cause more than de minimis cost on the operation of the employer’s business. Factors relevant to undue hardship may include the type of workplace, the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will in fact need a particular accommodation.

Scheduling changes, voluntary substitutions, and shift swaps are all common accommodations for employees who need time off from work for a religious practice. It is typically considered an undue hardship to impose these changes on other employees involuntarily. However, the reasonable accommodation requirement can often be satisfied without undue hardship where a volunteer with substantially similar qualifications is available to cover.

In other words, permitting Pierre to take every Sunday off may have imposed an undue hardship, depending on the nature of her work performed and her job duties. Other employees could have agreed to move shifts around to cover for her, but employers cannot force such scheduling changes. In Pierre’s case, however, the fact that the hotel appears to have accommodated her for eight years would weigh heavily in favor of the reasonableness of the accommodation.

In plain English, there might be a way around granting time off for an employee to observe a religious practice, but do you want to risk the inevitable (and expensive) lawsuit?

Also read: 5.1 Million Reasons to Keep Religion Out of Your Workplace

Legalities aside, this issue asks a larger question. What kind of employer do you want to be? Do you want to be a company that promotes tolerance or fosters exclusion? The former will help create the type of environment that not only mitigates against religious discrimination, but spills over into the type of behavior that helps prevent unlawful harassment and other liability issues. If you can grant the accommodation, why not do so? And if you have granted it, why take it away?

January 17, 2019June 29, 2023

The 3rd Nominee for the Worst Employer of 2019 is … the Barbarous Boss

2019 is officially the year that my Worst Employer contest went international.

How do you motivate your employees to hit their sales goals? If you’re the Runfa Hair Salon in Wuxi, China, you abuse the hell out of ’em.

According to the Daily Mail, employees who failed to sell 3,000 to 4,000 yuan ($436 to $582) worth of hair products each day suffered harsh physical punishment.

How harsh?

Employees were forced, in meetings in front of co-workers, to slap themselves in the face 100 times. If their face wasn’t sufficiently reddened, they’d face a monetary fine of 500 yuan ($73).

Others were force-fed raw chili peppers, onions, and vinegar. And some were forced to complete 10-km run.

Anyone who complained was summarily fired.

All of a sudden your quota at work doesn’t seem so bad, does it?

Previous nominees:

The 1st Nominee for the Worst Employer of 2019 Is … the Philandering Pharmacist

The 2nd Nominee for the Worst Employer of 2019 Is … the Little Rascal Racist

January 9, 2019June 29, 2023

What Does It Mean for Jobs to be “Substantially Equal” Under the Equal Pay Act?

The Equal Pay Act requires that an employer pay its male and female employees equal pay for equal work. The jobs need not be identical, but they must be substantially equal. Substantial equality is measured by job content, not job titles.

The Act is a strict liability law, which means that intent does not matter. If a women is paid less than male for substantially similar work, then the law has been violated, regardless of the employer’s intent.

This strict liability, however, does not mean that pay disparities always equal liability. The EPA has several built-in defenses, including seniority, merit, quantity or quality of production, or any other factor other than sex.

A recently filed case out of Boston delves into these issues.

According to CBS News, Elizabeth Rowe, the Boston Symphony Orchestra’s principal flutist, claims that her employer unlawfully pays the principal oboist (a man) about $70,000 more per year.

According to the lawsuit, “Both the principal oboe and principal flute are leaders of their woodwind sections, they are seated adjacent to each other, they each play with the Boston Symphony Chamber Players, and are both leaders of the orchestra in similarly demanding artistic roles.”

How did the oboist end up earning more? According to the lawsuit, the orchestra lured him away from the Metropolitan Opera Orchestra with the promise of higher pay. Rowe claims that she should be paid equally for similar work, regardless of the circumstances of his recruiting.

The orchestra claims that gender plays no role in how it sets salaries, which instead are determined by a variety of non-discriminatory factors, such as the difficulty of the oboe and its smaller pool of musicians.

What does it mean for two positions to be “substantially equal?’” According to the EEOC, employers should balance these five factors:

Skill: Measured by factors such as the experience, ability, education, and training required to perform the job. The issue is what skills are required for the job, not what skills the individual employees may have. For example, two bookkeeping jobs could be considered equal under the EPA even if one of the job holders has a master’s degree in physics, since that degree would not be required for the job.

Effort: The amount of physical or mental exertion needed to perform the job. For example, suppose that men and women work side by side on a line assembling machine parts. The person at the end of the line must also lift the assembled product as he or she completes the work and place it on a board. That job requires more effort than the other assembly line jobs if the extra effort of lifting the assembled product off the line is substantial and is a regular part of the job. As a result, it would not be a violation to pay that person more, regardless of whether the job is held by a man or a woman.

Responsibility: The degree of accountability required in performing the job. For example, a salesperson who is delegated the duty of determining whether to accept customers’ personal checks has more responsibility than other salespeople. On the other hand, a minor difference in responsibility, such as turning out the lights at the end of the day, would not justify a pay differential.

Working Conditions: This encompasses two factors: (1) physical surroundings; and (2) hazards.

Establishment: The prohibition against compensation discrimination under the EPA applies only to jobs within an establishment. An establishment is a distinct physical place of business rather than an entire business or enterprise consisting of several places of business. In some circumstances, physically separate places of business may be treated as one establishment. For example, if a central administrative unit hires employees, sets their compensation, and assigns them to separate work locations, the separate work sites can be considered part of one establishment.

I don’t enough about symphony orchestras to know how these factors all shake out in Boston. It seems to me, however, that a recruiting bump to lure someone from another employer is a solid “factor other than sex.”

Also read: Your 2019 Employment Law Compliance Checklist

If you have concerns that men and women in your workplace are being paid differently for similar work, you should audit you pay practices, and, if necessary, even them out, before the government or a plaintiff comes calling.

January 9, 2019June 29, 2023

Meet America’s Worst Employers of 2018

Throughout 2018 I tracked the worst behavior America’s employers offered up to their workforces.

I found each of the examples I tracked in actual court filings or in news stories. These are actual employers doing actual awful things to their employees.

How truly awful does one need to be to be named the 2018 Worst Employer of the Year? Consider that the following bad bosses did not make the cut in our online poll:

The Pregnancy Provoker: A supervisor compared an employee’s pregnancy to a tumor, expressed hope that she’d miscarry so that she wouldn’t miss work and told her to keep her legs crossed to delay childbirth so she could keep working.

The Soulless Supervisor: A supervisor fired an employee via text message while she was bedside with her son on life support.

The HR Pimp: A human resources chief hired women as possible sexual partners to men working for his government agency.

The Camera Creep: An employer ignored complaints that its general counsel had installed a hidden camera in the women’s locker room and had videos of nude and partially clothed female employees on his computer.

The Sadistic Sergeant: A police sergeant held a gun to an applicant’s head and threatened to shoot him if he made a mistake on his job application.

The Hedonistic Harasser: A company ignored complaints about genital grabbing and pantomimed rape, and further ignored complaints about threats of violence after the victim complained.

And if you think those were bad, here are the four worst, according to our online readers who voted on their favorite (or perhaps in this case, least favorite) bad bosses of 2018.

The Sexist, Racist, Xenophobic, Oh My!: A plant manager used racial slurs toward his employees, such as calling foreign-born employees “terrorists” and telling the company’s only African-American employee that her husband should work in a cotton field with a rope around his neck. The same plant manager also complained that he was “sick” of immigrants stealing jobs from Americans and not speaking English, forbade employees from speaking foreign languages and urged immigrant employees to leave America. Female employees did not fare much better, with the plant manager calling them “bitches,” and told one female employee that she was too “fat and disgusting” to have sex with her husband. When employees complained to the company’s owner, he not only did nothing to stop the harassment, he also became an active participant.

The Supervisor Supremacist: A supervisor made numerous racist remarks to his lone African-American employee, including “white power,” “if you’re not white, you’re not right,” telling him to leave because the other employees were having a Klan meeting, and using the N-word. He also started his morning meetings by saying “white power” and giving the Nazi salute. The supervisor placed a jockey statue on the employee’s desk, affixed a whip in the jockey’s hand, tied the whip around the horse’s neck in a noose, and labeled the statue with the name of the African-American employee. Finally, someone painted a troll doll black and hanged it in the plant labeled with the name of the African-American employee.

The Tasering Torturer: A car salesman alleged that the dealership’s owner engaged in a continuous and unrelenting campaign of verbal and physical abuse and harassment, including: repeatedly demeaning him based on his large size with names such as “Tiny,” “Fat Ass,” and “handicapped”; pointing the red laser-sight of a handgun at him; placing the handgun to his chest while telling him not to make any sudden moves; holding knives or other sharp objects to his throat while demanding that he not make any sudden movements; telling him he could “slit [his] throat and sleep just fine at night”; striking his surgically repaired leg; lighting fires near him; and finally, repeatedly shocking him with a taser.

My vote, however, for the Worst Employer of 2018 goes to the owner of a Cleveland area convenience store who (allegedly) hired two men to rough up a handyman who was not performing up to standards. They went too far, however, which resulted in the handyman’s death. Criminal charges are pending. If you (allegedly) cause the death of an employee by (allegedly) hiring two men to rough him up as a workplace motivational tool, you’ve earned my vote for the Worst Employer of 2018.

While we can all cringe at how truly awful these employers are, there are basic lessons about harassment, sexism, racism, bullying and abuse undercutting each of these examples. So, employers, here is your goal for the new year, and it’s relatively simple to achieve: Do not end up on this list in 2019!

January 7, 2019June 29, 2023

Your 2019 Employment Law Compliance Checklist

Today is the start of the first full week of 2019. Which means it’s a perfect time to take a step back and review your efforts at HR and employment law compliance for the coming year.

This list is not mean to be complete or exhaustive, but should provide a high level look at the top 20 issues that you should be reviewing this year, and every year for your business.

☑️ How many employees do you have (15 / 20 / 50)?

☑️ When is the last time your handbook has been reviewed and updated?

☑️ When was your last harassment / respectful workplace training?

☑️ Do you require restrictive covenants for key employees?

☑️ Do you have employees that work in states in which marijuana is legal?

☑️ Do you have federal contracts?

☑️ Are your employment law posters up to date?

☑️ Has your state or local minimum wage increased?

☑️ How are you calculating and paying overtime to non-exempt employees?

☑️ When did you last analyze your exempt employees?

☑️ Do you have independent contractors?

☑️ Is all of your workplace OSHA compliant?

☑️ Are your OSHA 300 logs up to date and your 300A form posted?

☑️ Are your FMLA forms up to date?

☑️ Are you managers trained on the ADA interactive process?

☑️ Are you job applications and workplace accessible for the disabled?

☑️ Do you know what devices are accessing your network?

☑️ Have you tested your network for security?

☑️ Are employees trained on cybersecurity compliance?

☑️ Do you have necessary and appropriate insurance (EPLI / Cyber / D&O)?

Questions about how to execute this list in your business? Call your employment counsel.

Also read: EEOC Offers Sage Advice on Following Checklists for Harassment Compliance

Also read: Workplace Compliance By Carrot Trumps Compliance By Stick

January 2, 2019June 29, 2023

The 2nd Nominee for the Worst Employer of 2019 Is … the Little Rascal Racist

Welcome to 2019.

New year, same old employers earning themselves nominations for my annual race to the bottom.

Darryl Robinson, the only African-American employee in his Marriott Vacations Worldwide office, claims he was subjected to repeated racial harassment during his 11 months of employment.

NBC News offers the allegations.

- Robinson alleges that a director of sales repeatedly asked him to dance to music by Michael Jackson during sales meetings.
- While complimenting his staff, the director of sales said, “Daryl looks ready to breakdance.”
- Robinson claims that the company did not provide him a cubicle like every other sales rep, but instead required him to work out of a cramped storage closet without air conditioning.
- Robinson suggested that there was no need for him to a take part in team building exercise involving employees’ baby photos, since he was the only African-American in the office. A colleague told him that if he opted out, she’d just use a photo of Buckwheat. True to her word, she inserted a Buckwheat photo and asked the team: “Who do you guys think this is?”

For its part, Marriott Vacations Worldwide provided a solid “no comment.”

2019 is off to a rousing start. Do you have an employer to nominate as this year’s Worst Employer? Email me at jhyman@meyersroman.com, or drop a comment below.

Previous nominees:

The 1st Nominee for the Worst Employer of 2019 Is … the Philandering Pharmacist

December 18, 2018June 29, 2023

Key Elements of Complying With State Sexual Harassment Prevention Requirements

Sexual harassment has been a constant topic of discussion in the media, in the workplace and around dinner tables since the rise of the #MeToo movement in late-2017. Employers and employees alike have questioned what this societal shift means for their workplace interactions and responsibilities.

Though the issue remains at the forefront of the news cycle, many alleged sexual harassment incidents aren’t widely known or reported. State legislators are working to change that. More than 30 jurisdictions have introduced more than 100 pieces of legislation in 2018 toward sexual harassment prevention.

One of the first goals of these state mandated sexual harassment prevention policies is general education, making sure everyone is aware that sexual harassment is prohibited and to provide a definition of what it may include. Sexual harassment is a broad but very fact-specific form of discrimination that can include:

Unwanted verbal or physical sexual advances.
Sexually explicit statements.
Sexually oriented gestures, noises, remarks, jokes or comments.
Remarks the recipient feels are offensive or objectionable.
Sexual or discriminatory displays/publications anywhere in the workplace.
Other harassing or hostile conduct that’s directed at recipients because of their sex.

All of the above may be considered examples of sexual harassment. Offering such examples is a significant item in the list of minimum standards New York is requiring of all anti-sexual harassment policies. Policies must also outline federal and state statutory provisions, and include remedies available to victims, procedures for a timely investigation and a complaint form for employees.

Also read: #MeToo — Movement or Moment?

It’s important to note that sexual harassment can be overt (such as inappropriate touching, unwanted sexual advances or telling of crude jokes) or subtle (including interfering with an individual’s ability to perform their job because of their gender). An employee can be sexually harassed by a supervisor, subordinate, employee, intern, independent contractor, temporary or contract worker, vendor, client, visitor or customer.

Another key principle of much of the anti-sexual harassment legislation introduced this year is training. In New York, for example, all employers must provide annual interactive sexual harassment prevention training for every one of their employees working in the state — including part-time, seasonal and temporary employees. The initial training must be completed by October 9, 2019. The training must be interactive, should be provided in the language the employee speaks, and — according to the guidance — must include the following components:

An explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights.
Examples of conduct that would constitute unlawful sexual harassment.
The federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment.
Employees’ rights of redress and all available forums for adjudicating complaints.
Addressing conduct by supervisors and any additional responsibilities for such supervisors (note that all employees must be trained on this content, not just supervisors).

Though compliance with the new policy and training requirements for sexual harassment prevention can seem daunting, the New York State Department of Labor in consultation with the New York State Division of Human Rights has provided model materials that employers and HR managers can use to comply with the requirements in the state. The potential costs of a sexual harassment complaint against a business can be steep, so it’s in everyone’s best interest to be compliant with sexual harassment prevention training requirements. The typical harassment claim can take nearly 318 days to be settled, according to the 2017 “Hiscox Guide to Employee Lawsuits,” and some estimates place the average legal costs to defend and settle a claim to be upward of $160,000. Not to mention the irreparable damage a sexual harassment claim can have on your company’s reputation and the morale and productivity of the workplace.

Also read: Addressing #MeToo in the Workplace and HR’s Response

In addition to model materials and other guidance that may be provided by enforcing agencies to help employers meet the state’s unique requirements, businesses can also turn to an HR services provider to help them comply with new or existing provisions. State-specific requirements can be both comprehensive and complex. Even the most seasoned HR professional will likely have questions around the specific components of their state-mandated notice, policy and education programs. A reputable HR services provider will have a team of compliance experts on staff to help businesses ensure their policies and practices align with the requirements of their particular state (or states if they operate in multiple locations).

No matter where your organization does business, part of your HR role is to adopt and implement policies and procedures to prevent and address sexual harassment in the workplace. More importantly, promoting an inclusive culture of respect and free from sexual harassment can be essential in maintaining an engaged and productive workforce and even attracting the right talent to the organization.

This content is for educational purposes only, is not intended to provide specific legal advice, and should not be used as a substitute for the legal advice of a qualified attorney in your state. The information in this article may not reflect the most current legal developments, may be changed without notice and is not guaranteed to be complete, correct or up to date.

December 11, 2018June 29, 2023

The 1st Nominee for the Worst Employer of 2019 is … the Philandering Pharmacist

While I continue to tally votes to name the Worst Employer of 2018, I have an employer to kick off the nominees for 2019.

Meet Joyce Fogleman, the president, pharmacist and sole owner of J&S Professional Pharmacy, who is, along with her pharmacy, the defendant in a sexual harassment suit in Blades v. J&S Professional Pharmacy.

With tongue planted firmly in cheek, Judge J. Philip Gilbert of The United States District Court for the Southern District of Illinois describes the employer as “your typical pharmacy.”

Typical, that is, until you read the allegations levied by Wendy Blades and her co-workers:

Joyce Fogleman demanded kisses on her mouth by employees as a prerequisite to receive their paychecks.
Fogleman gave employee spankings as a form of discipline and sexual gratification in front of other employees and customers.
Fogleman went nude both in the workplace and at company-sponsored events.
Fogleman made comments about the physical attributes of employees in front of other employees and customers.

Two thoughts:

1. What the hell kind of pharmacy is this?

2. Employers, the bar for 2019 is set. How will you top it?

December 3, 2018June 29, 2023

What Can the Holiday Movie ‘Elf’ Teach Us About the ADA?

The Hyman clan carried out our annual holiday tradition of watching “Elf.”

Since much of the story took place in and around various workplaces, this year I decided to watch with an eye toward shareable employment law lessons.

Early in the story, Buddy learns the harsh reality that he is not actually an elf but a human. He learns this lesson after falling 985 Etch A Sketches short of his production expectations and being transferred to Jack-in-the-Box testing (the job reserved for “special” elves).

Assuming that Buddy’s height is a disability in the North Pole (and if the ADA protects dwarfs down south, it’s safe to assume the North Pole’s disability discrimination laws would similarly protect Buddy’s heightened height up north), what ADA lessons does this parable teach us?

1. Reasonable production standards.

The ADA does not require an employer to lower production standards — whether qualitative or quantitative — that it applies uniformly to employees with and without disabilities. An employer may, however, have to provide reasonable accommodation to enable an employee with a disability to meet the production standard.

Thus, if Santa requires 1,000 Etch A Sketches per day, then Buddy is required to make 1,000 Etch A Sketches per day, disability or no disability. Santa may, however, have to offer Buddy a reasonable accommodation (if available) to meet that quota. Santa may also choose to lower or waive the production standard, but he is not required to do so. Keep in mind, however, that if one waives or lowers the requirement for one employee, it makes it difficult to argue for future employees that the production requirement is truly essential, or that altering it is not a reasonable accommodation.

2. Transfer as reasonable accommodation.

The ADA specifically lists “reassignment to a vacant position” as a form of reasonable accommodation. An employer must consider this type of reasonable accommodation for an employee who, because of a disability, can no longer perform the essential functions of their current position, with or without reasonable accommodation. Reassignment is the reasonable accommodation of last resort and is required only after it has been determined that: (1) there are no effective accommodations that will enable the employee to perform the essential functions of his/her current position, or (2) all other reasonable accommodations would impose an undue hardship.

There are, however, several caveats.

The employee must be “qualified” for the new position, both by satisfying the requisite skill, experience, education, and other job-related requirements of the position, and by being able to perform the essential functions of the new position, with or without reasonable accommodation. An employer is under no obligation to assist the employee is becoming qualified, such as by providing training to enable the employee to obtain necessary skills for the job.

“Vacant” means that the position is available when the employee asks for reasonable accommodation, or that the employer knows that it will become available within a reasonable amount of time.

The reassignment must be to a position equal in pay, status, or other relevant factors (such as benefits or geographical location). If there is no vacant equivalent position, the employer should reassign to a vacant lower level position for which the individual is qualified and which is closest to the employee’s current position in terms of pay, status, etc.

For Buddy, that position was Jack-in-the-Box tester, an open position for which he was qualified.

There you have it. ADA lessons from “Elf.” Happy holidays.