Voudris Law Blog 

Piece Rate Workers Need To Be Paid At Least Minimum Wage and Overtime

     A national food distribution company recently agreed to pay over $136,000 in back wages and liquidated damages to 47 employees after the Department of Labor investigated and found overtime and other Fair Labor Standards Act violations.  The DOL determined that the company misclassified employees as independent contractors and then did not pay the employees at least minimum wages and time and a half overtime wages.  The company paid employees on a piece rate basis and did not make payments based on the hours worked by the employees.  The DOL found that some employees were not compensated at least minimum wages based on the hours that they had actually worked, and also that the company paid the same piece rate basis for overtime hours worked by employees.  Employers are obligated to pay employees at least minimum wages for their hours worked, and many employees are owed time and a half overtime wages for their hours worked over forty in a workweek, sometimes even when the employee is paid on a salary basis.

Source: https://www.dol.gov/newsroom/releases/whd/whd20171020-0

Wage Decisions Cannot Be Based On Employees’ Sex

     The U.S. Equal Employment Opportunity Commission settled a lawsuit with Spec Formliners, Inc. that alleged the company had made wage decisions on the basis of its employees’ sex.  The EEOC’s lawsuit alleged that the company had paid one of its female sales representatives less than a male sales representative, and also that the company required her to make more sales than the male representative in order for her to earn the same sales commission.  The Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964 prohibits paying an employee less on the basis of her sex.  See EEOC v. Spec Formliners, Inc., No. 8:16-cv-02066-BRO-AJW (C.D. Cal.).

Employers Cannot Base Hiring Decisions On Disabilities

     The U.S. Equal Employment Opportunity Commission recently settled a lawsuit where it alleged that a staffing firm made health inquiries during the job application process.  The EEOC’s lawsuit claims that Strataforce required job applicants to complete a detailed medical questionnaire that asked for sensitive health information.  This alleged conduct violates the Americans with Disabilities Act, which prohibits hiring decisions on the basis of a prospective employee’s disability because this type of inquiry could subject job applicants to discrimination on the basis of a disability.  See EEOC v. Workforce Integration Inc., No. 1:17-cv-4104 (S.D. Ind.).

If You Need Time Off Work For A Serious Medical Condition, Check To See If You Are Eligible for FMLA

     The Department of Labor recently resolved a matter alleging violations of the Family and Medical Leave Act by a nursing home.  The Department of Labor found that the nursing home did not inform employees that their medical conditions might qualify them to take a leave of absence under the Family and Medical Leave Act, and also that the companies did not provide employees with information regarding the Family and Medical Leave Act.  These employees instead received negative points for attendance and other discipline when they exceeded absence limits due to missing work for reasons that may have been eligible for leave under the FMLA.  The nursing homes also required the employees to work with other employees to cover their shifts.  For qualified employees, the Family and Medical Leave Act requires that employers provide eligible employees with up to twelve weeks off per year in order to attend doctor’s appointments and to care for family members.  See Acosta v. Fremont Healthcare, LLC, No. 17-cv-00644 (W.D. Mich.).

Servers Must Be Paid By Restaurant, Even If They Receive Great Tips

     The Department of Labor recently settled with a restaurant after the DOL found that the company had failed to pay its employees all applicable overtime and minimum wages by not paying minimum wage to dishwashers and to a server who was performing work for the restaurant while receiving compensation only in the form of tips.  The DOL further found that cooks, dishwashers, and servers did not receive appropriate time and a half overtime payments for their hours worked over forty in a workweek.  Even tipped hourly employees must received the tip server minimum wage directly from the employer, regardless of how much that employee makes in tips.  Violations of these requirements can results in two or three times the amount of unpaid wages, as well as reasonable attorney’s fees and costs.  See Acosta v. Café Misono Inc., No.17-cv-11993-RWZ (D. Mass.).

Refusing to Employ Employees Complaining About Sexual Harassment Is Illegal

     The U.S. Equal Employment Opportunity Commission has filed a lawsuit against Anchor Staffing, alleging that the company did not adequately respond to an employee’s complaints of sexual harassment and then refused to provide her with future work.  The EEOC claimed that its pre-lawsuit investigation showed that an employee at her first day of work at the Illinois Department of Human Services, to which she had been assigned by Anchor Staffing, was sexually harassed by a second employee of Anchor Staffing, who had also been assigned to the IDHS.  The female employee complained to Anchor Staffing, and, in response, Anchor Staffing removed her from her work assignment and then failed to find her other work assignments.  The EEOC's claims amount to the employee effectively being terminated by Anchor Staffing.  This alleged conduct is a violation of Title VII of the Civil Rights Act of 1964.  It is illegal to discriminate against employees on the basis of their sex, and it is illegal to retaliate against employees who complain about sex discrimination or sexual harassment.  See EEOC v. Anchor Staffing, Inc., No. 17-cv-7899 (N.D. Ill.).

Employers Are Required To Make Reasonable Accomodations For Employees With Disabilities

     The U.S. Equal Employment Opportunity Commission recently filed a lawsuit against a hospital alleging disability discrimination after the company terminated an employee who had requested leave for her medical condition.  The EEOC’s lawsuit claims that in May 2016, the hospital terminated Wendy Kelley after she requested the reasonable accommodation of being allowed leave in order to receive treatment for her medical condition.  The EEOC alleges that the hospital chose to terminate her employment rather than make the reasonable accommodation.  Kelley had requested two weeks of leave after her doctor placed restrictions on her mandating that she not work during this time.  Indeed, Kelley fainted while she was on the way to ask her supervisor for the leave.  Kelley’s request for leave was denied, and she was terminated.  The Americans with Disabilities Act prohibits discrimination against employees, including termination, because of a disability.  See EEOC v. Phoebe Putney Memorial Hospital, Inc., No. 1:17-CV-00201-WLS (M.D. Ga.).

Can’t Refuse To Hire The Elderly Because Of Fear That They Will Retire Soon

     The U.S. Equal Employment Opportunity Commission recently announced that it settled a lawsuit alleging age discrimination with Ruby Tuesday for $45,000.  The EEOC’s lawsuit claimed that Ruby Tuesday refused to hire a qualified applicant because of his age.  Although the applicant had over twenty years of experience working in the food and beverage industry, Ruby Tuesday told him that it was looking for a candidate who could “maximize longevity.”  When a job applicant is over the age of forty, it is illegal for companies to refuse to hire that applicant because of age.  See EEOC v. Ruby Tuesday, Inc., No. 0:17-cv-60970-BB (S.D. Fla.).

Mandatory Retirement Ages Could Be Illegal

     The U.S. Equal Employment Opportunity Commission recently filed a lawsuit alleging that a dental surgery practice illegally terminated an employee because of her age, under the company’s mandatory retirement policy.  The EEOC’s lawsuit claims that the company terminated an employee who had worked for it for over thirty seven years as a receptionist.  The lawsuit alleges that the employee was fired four days after her sixty fifth birthday because of a company policy that mandated retirement once an employee turned sixty five years old.  Mandatory retirement policies on the basis of age are usually illegal.  See EEOC v. Professional Endodontics, P.C., No.: 4:17-cv-13466 (E.D. Mich.).

What Not To Say To Women About Getting Pregnant

     The U.S. Equal Employment Opportunity Commission recently reported that Dash Dream Plant, Inc. has agreed to settle a lawsuit that the EEOC brought against it alleging pregnancy discrimination.  The EEOC’s lawsuit claims that the company conducted staff meetings wherein female employees were told not to get pregnant.  Female employees were also informed that if they became pregnant, then they should consider themselves fired.  The lawsuit further alleges that the company did not rehire or reinstate female employees who tried to return to work after giving birth.  These alleged actions are violations of Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, and Title I of the Civil Rights Act of 1991.  It is illegal to discriminate against female employees because of their sex and pregnancy.  See EEOC v. Dash Dream Plant, Inc., No. 1:16-cv-01395-DAD-EPG (E.D. Cal.).

Men Must Be Allowed To Change Diapers Too

     The U.S. Equal Employment Opportunity Commission recently filed a lawsuit against The Children’s Home, Inc., wherein it alleged that the non-profit company discriminated against a male employee by refusing to consider him for a management position based on his sex.  The lawsuit also alleges that the company retaliated against the employee by refusing to allow him to apply for other positions after he complained that he was not being considered for a position because of his sex.  The company allegedly discouraged the male employee, Luis Vasquez, from applying to a position in the organization’s new Adolescent Motherhood Program.  The lawsuit claims that the employee was informed that management “wasn’t sure if they would accept males to work at the new motherhood program” and also said to the employee “can you imagine males changing pampers, working with babies and with pregnant girls?”  Vazquez complained that he had been refused the position because of his sex, and thereafter the company told him that there were no other positions available for him.  A female employee with less experience was given the position to which he had applied.  The alleged conduct violates Title VII of the Civil Rights Act of 1964.  Title VII prohibits discrimination against employees on the basis of their sex, as well as retaliation for complaining about such discrimination.  See EEOC v. Children's Home, Inc., No. 8:17-cv-02262-EAK-JSS (M.D. Fla.).

Firing an Employee for Complaining About Harassment is Illegal

     The U.S. Equal Employment Opportunity Commission recently filed a lawsuit against Aqua Resources alleging that the company discriminated against African-American employees by subjecting them to a racially hostile work environment and then firing an employee after he complained about the harassment.  A supervisor, who was Caucasian, made repeated derogatory comments and jokes to African American employees that were racially offensive.  The comments and jokes included comments such as “n*****,” “monkey,” and “boy.”  The EEOC also alleges that a supervisor told a white employee not to “n***** the truck up.”  Aqua Resources did not stop the harassment after receiving a complaint.  Instead, Aqua Resources actually promoted a wrongdoer, placed the wrongdoer as a supervisor over the complaining employee on a project, and then firing the complaining employee.  See EEOC v. Aqua America, Inc., No. 2:17-cv-04346 (E.D. Pa.).

EEOC Successfully Settles Hostile Work Environment Case with Auto Dealer

     The U.S. Equal Employment Opportunity Commission recently announced that Reliable Nissan agreed to settle charges of discrimination alleging race discrimination, national origin discrimination, religious discrimination, and retaliation.  Employees claimed that two managers from the company repeatedly used the “n-word” during a meeting and used derogatory terms to refer to African-American, Native American, Muslim, and Hispanic employees.  The employees alleged that the managers also made offensive jokes about the religious practices of Muslim and Native American employees, and that the workplace included offensive pictures towards minority employees.  The employees further claimed that the managers used offensive terms including “n*****,” “drunken Indians,” and “redskins.”  The alleged conduct is a violation of Title VII of the Civil Rights Act of 1964.  Discrimination against employees on the basis of their race, religion, or national origin is illegal.  It is also illegal to retaliate against employees who complain about such discrimination.  The EEOC reported that Reliable Nissan agreed to pay $205,000 total to three employees who filed allegations of discrimination.  See https://www.eeoc.gov/eeoc/newsroom/release/10-11-17.cfm

Firing Women Because They Are Pregnant Is Illegal

     The U.S. Equal Employment Opportunity Commission recently filed a lawsuit against Friedman Realty Group alleging that the company fired at least three employees due to their respective pregnancies.  The lawsuit alleges that one of the company’s employees, Brianna Mazzella, informed the regional property manager around March 2013 that she was pregnant.  After informing the manager, he made inappropriate comments to Mazzella about her pregnancy including “when women get pregnant they get stupid” and “I would never have kids, it’s gross.”  The Complaint alleges that the regional property manager then placed unrealistic deadlines on Mazzella and unfairly scrutinized her work.  The EEOC also alleges that three pregnant employees were terminated because of their pregnancies.  Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees on the basis of the employee’s pregnancy.  See EEOC v. Friedman Realty Group, Inc., No. 1:17-cv-07659 (D.N.J.).

Department of Labor Will Decide New Salary Overtime Rules

     In 2016, the Department of Labor created a regulation that would required employers to pay employees a salary of at least $47,476 in order not to have to pay them overtime wages.  Thus, many salaried employees earning less than that amount would be owed time and half overtime wages for their hours worked over forty in a workweek.  This was a significant increase over the previous minimum of $23,660.  A federal judge placed an injunction on the regulation last year, and the current Justice Department must decide by the end of October whether it will appeal that injunction.  Some reports suggest that the current Labor Secretary, Alexander Acosta may seek to enact a new regulation at an amount closer to $32,000 or $33,000.  Whatever regulation is eventually decided could have a substantial impact on millions of employees and could require employers to pay more of its employees time and a half wages for their overtime hours.  

Home Depot Sued For Disability Discrimination

     The U.S. Equal Employment Opportunity Commission recently filed a lawsuit against Home Depot alleging that the company did not accommodate and then later fired an employee due to her disability.  The lawsuit claims that Home Depot refused to provide April Stevenson with the reasonable accommodation of a short break, which was necessary because she suffers from irritable bowel syndrome and fibromyalgia.  The EEOC further alleges that the company terminated the employee after she had an emergency that was related to her disability.  A statement from the EEOC’s Chicago Director Julianne Bowman claimed that “Home Depot failed to provide her adequate means to attend to her disability, then fired her for minor policy infractions that were caused only by Home Depot’s failure to accommodate her.”  The alleged conduct is a violation of the Americans with Disabilities Act, which prohibits discrimination on the basis of an employee’s disability.  See EEOC v. Home Depot, No. 17-cv-06990 (N.D. Ill.).

Illegal to Retaliate against Employee Complaining About Racial Harassment

     The EEOC filed a lawsuit against a contractor who allegedly subjected one of its employees to racial harassment and then retaliated against the employee by terminating his employment when he complained about the harassment.  A bi-racial (Caucasian and African-American) employee, Rodney Woodall, had worked for Floyd’s as a backhoe operator.  The Complaint claims that in July 2016, Woodall’s foreman yelled “hurry up n*****!” at a Caucasian employee who was standing near Woodall and called an employee “n*****” over the radio less than a week after the first incident.  Woodall complained about the racial harassment and derogatory language to the Superintendent.  The next day, the foreman allegedly confronted Woodall, told Woodall that he would call him whatever he wanted (including “Oreo”) and that if he didn’t like it, then he should find another job.  Woodall reported these comments to the Superintendent too.  The next day, Floyd’s transferred Woodall to Missouri and assigned him to perform more physically demanding work digging with a shovel, instead of operating a backhoe.  Less than a week after the transfer, Floyd’s terminated Woodall.  Such alleged conduct is a violation of Title VII of the Civil Rights Act of 1964, which prohibits discrimination against employees who complain about racial harassment.  See EEOC v. Floyd’s Equipment, Inc., No. 1:17-cv-175 SNLJ (E.D. Mo.).

Males Have Rights Too

     The EEOC recently filed a lawsuit alleging that a Buffalo Wild Wings discriminated against males by refusing to hired qualified male applicants for bartender positions.  Allegedly, the company told a male bartender applicant that it was looking to hire a female.  The alleged conduct is a violation of Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of an employee or prospective employee’s sex.  See EEOC v. R Wings R Wild LLC, No. 4:17-cv-624 (E.D. Ark.).

EEOC Sues Lowe’s For Disability Discrimination

     The EEOC filed a lawsuit against Lowe’s, the home improvement company, alleging that it failed to accommodate and demoted an employee who suffers from a spinal cord injury.  This disability substantially limits his ability to use his right arm.  Due to his disability, the employee cannot use power equipment requiring two-handed use, but the employee was previously able to assign that task to other employees whom he then supervised.  The lawsuit claims that in 2015, Lowe’s ceased providing the employee with this accommodation and then demoted him and cut his pay by more than $4 per hour.  This alleged conduct is a violation of the Americans with Disabilities Act, which requires employees to provide reasonable accommodations unless it would create an undue burden on the employer.  See EEOC v. Lowe’s Cos., No. 4:17-cv-02589-M (N.D. Tex.).

Reasonable Accomodations Required For Cancer Surgery

     The EEOC recently filed a lawsuit against a casino for allegedly refusing an employee’s request for a few additional weeks of leave to undergo cancer treatment and then terminating the employee.  The employee suffers from sarcoma, and he had needed chemotherapy and surgery in order to treat his cancer.  This alleged conduct is a violation of the Americans with Disabilities Act.  Employers are obligated to provide their employees with reasonable accommodations unless such an accommodation would create an undue burden on the employer.  See EEOC v. Midwest Gaming LLC dba Rivers Casino, No. 17-cv-6811 (N.D. Ill.).

EEOC Disability Discrimination Lawsuit Settlement

     A healthcare company that provides medical services has reportedly agreed to pay $100,000 to settle a lawsuit that the Equal Employment Opportunity Commission brought against it alleging disability discrimination.  The EEOC’s lawsuit claimed that nurse Beatrice Chambers received sick leave in order to have surgery on her shoulder.  Before her leave expired, Chambers requested an extension of her leave or, in the alternative, light duty work.  This request was made with the advice of her doctor and her physical therapist.  River Region did not grant this request, did not provide Chambers with a reasonable accommodation and eventually terminated Chambers’ employment.  Chambers had worked as a nurse for River Region for 36 years.  Terminating an employee because of her disability is a violation of the Americans with Disabilities Act.  Employers must provide reasonable accommodation for an employee’s disability, unless the accommodation would create an undue hardship on the employer.  See EEOC v. Vicksburg Healthcare, L.L.C., No. 15-60764 (5th Cir. Oct. 12, 2016).

Breaks as a Disability Discrimination Accommodation

     The Equal Employment Opportunity Commission recently filed a lawsuit against The Hershey Company alleging that the company refused to accommodate and then terminated an employee with a disability.  The EEOC’s lawsuit claims that Hershey became aware that its employee Kristina Williams had herniated discs and lifting restrictions around the time that she was hired in 2011 as a part-time retail sales merchandiser.  Around 2015, Williams was diagnosed with spinal stenosis and took a medical leave of absence.  Williams requested flexibility to adjust her daily break from one large break into smaller breaks throughout the day, which would allow her to meet her lifting restrictions.  Instead of granting the accommodation, Hershey did not allow Williams to return to work, which resulted in an effective three-month suspension.  Subsequently, Hershey denied Williams’ request for accommodation and terminated her employment.  The EEOC alleges that this conduct violated the Americans with Disabilities Act, which requires employers to provide reasonable accommodations to employees who suffer from a disability.  See EEOC v. Hershey Company, No. 2:17-cv-01092 (W.D. Wash.).    

EEOC Files Religious Discrimination Lawsuit Where Employer Required Female Employee to Wear Pants Instead of a Skirt

     A Tim Horton’s franchise has been sued by the Equal Employment Opportunity Commission for allegedly failing to accommodate and terminating an employee due to her sincerely held religious beliefs.  The EEOC’s lawsuit alleges that the employee, Amanda Corley, wore a skirt to work at one of the restaurant’s Michigan locations.  Corley is a practicing Pentecostal Apostolic.  In accordance with her religious beliefs, Corley wore a skirt instead of the standard pants required by the company.  Corley attempted to provide the company with a letter from her pastor, which letter explained why she could not wear pants, but management for the company did not accept the letter and then fired Corley.  See EEOC v. Sleneem Enterprises, LLC, No. 2:17-cv-12337 (E.D. Mich.).

Settlement of EEOC Pregnancy and Disability Discrimination Suit

     The EEOC’s lawsuit alleged that Carolina Creek discriminated against Korrie Reed, after it learned that she had a pregnancy-related complication:  gestational diabetes.  Reed did not request any reassignment at her job, and she did not indicate that she could not perform her job duties.  Carolina Creek’s executive director demoted Reed and claimed that the registrar job was too demanding for Reed to do because of her pregnancy and medical condition.  Reed informed this same executive director that she believed the demotion was illegal, Reed was fired and sued by Carolina Creek in two separate lawsuits.  The alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits discriminated based on pregnancy, and the Americans with Disabilities Act, which prohibits disability discrimination.  Both Title VII and the Americans with Disabilities Act prohibit retaliation as a result of complaining about or opposing the related discrimination.  The company will reportedly pay $70,000 and provide other relief to settle the lawsuit.  See EEOC v. Carolina Creek Christian Camp, Inc., No. 4:16-cv-03714 (S.D. Tex. 2016).

Failure to Reasonably Accommodate a Sitting Restriction

     Piercing Pagoda has reportedly agreed to pay $30,000 to settle a lawsuit filed by the Equal Employment Opportunity Commission, which claimed the company fired manager Rose Gravel because of her disabilities:  fibromyalgia and degenerative disc disease.  Gravel requested a reasonable accommodation that she be permitted to sit for 15 minutes each hour.  Gravel also received a clearance to work from her doctor after she took FMLA leave with the restriction that the company permit her to take sitting breaks throughout her work shifts.  Zale refused Gravel’s request for accommodation and required that she stand for the duration of her work shifts.  The alleged conduct violates the Americans with Disabilities Act, which prohibits discrimination against employees because of their disabilities.  See EEOC v. Zale Delaware, Inc., No. 4:15-cv-00149-D (E.D.N.C. 2015).

EEOC Files Religious Discrimination Lawsuit for Failure to Accommodate Not Working the Jewish Sabbath

     The Equal Employment Opportunity Commission recently filed a lawsuit against trucking company J.C. Witherspoon, Jr. Inc..  The lawsuit alleges that the company fired an employee truck driver for his religious beliefs.  The EEOC’s Complaint claims that the employee was a 35-year practicing Hebrew Pentecostal, which required him not to engage in any labor on the Biblical Sabbath, which lasts from sunset on Fridays to sunset on Saturdays.  The lawsuit also alleges that the employee informed the truck supervisor and foreman that he is a practicing Hebrew Pentecostal, and that he informed them about his observation of the Sabbath during his pre-hire interview.  The employee told the foreman and supervisor that he would need to be accommodated by not working on Saturdays.   Weeks after he was hired, the company required the employee to work on a Saturday, which he did while also informing the company that he would not work on Saturday again.  About a year and a half later, the company demanded the he work on Saturday again, which the employee refused, and he was subsequently terminated.  The alleged conduct violates Title VII of the Civil Rights Act of 1964, prohibits employers from discriminating against employees on the basis of their religion.  See EEOC v. J.C. Witherspoon, Jr. Inc., No. 2:17-cv-00745-DCN-MGB (D.S.C. 2017).

Department of Labor Sues JPMorgan Chase for Allegedly Paying Females Less Than Males

     The United States Department of Labor recently filed a lawsuit against JPMorgan Chase & Co., which alleges that JPMorgan Chase discriminated against female employees in certain positions by paying them less than it paid male counterparts.  The Department of Labor found that JPMorgan Chase has paid nearly one hundred female employees less than male comparators in various positions at the company.  The lawsuit was filed by the Department of Labor’s Office of Federal Contract Compliance Programs, which alleges that JPMorgan Chase has violated an executive order that prohibits federal contractors from discrimination on the basis of sex, which includes disparate payment because of a person’s sex.

Pregnancy Discrimination is Illegal

     Life Time Fitness, Inc. will reportedly pay $86,000 to settle a lawsuit filed by the Equal Employment Opportunity Commission alleging pregnancy discrimination.  The lawsuit alleged that Life Time told a job applicant, Emily Carpenter, to fill out new hire paperwork so she could be scheduled.  Carpenter emailed Life Time her availability and informed the company that she was 35 weeks pregnant.  Life Time allegedly then failed to schedule Carpenter and ceased communications with her.  A manager eventually told Carpenter that her position was placed on hold and that they had hired two other people.  Life Time encouraged Carpenter to apply for a position at a different facility that would open later in the year.  The alleged conduct is a violation of Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of pregnancy.  See EEOC v. Life Time Fitness, Inc., No. 8:16-cv-02936-DKC (D. Md.)

Jury Finds For EEOC In Sexual Harassment Case

     The EEOC recently won a jury award of $250,000 in compensatory damages for a case alleging sexual harassment against Costco Wholesale Corp.  The lawsuit alleged that for more than a year Costco did not prevent a male customer from harassing and stalking one of its female employees.  She allegedly suffered unwelcome advances, touching, and stalking.  The employee repeatedly reported the customer’s inappropriate conduct to Costco management.  Indeed, the customer himself even reported that he had ongoing contact with the Costco employee, but Costco did nothing to stop the harassment.  The employee was eventually forced to get a restraining order against the customer.  The EEOC argued that Costco’s failure to attempt to prevent the harassment created a hostile work environment for the employee, in violation of Title VII of the Civil Rights Act of 1964.  See Equal Employment Opportunity Commission v. Costco Wholesale Corp., No. 14-cv-6553 (N.D. Ill.).

Armless Employee Files Disability Discrimination Lawsuit Against Kroger

     Kroger grocery store is alleged to have discriminated against an employee who did not have any arms, according to a lawsuit that was recently filed.  The Plaintiff, Michael Trimble, was unable to drive because of his disability, so he rode a bike to work each day.  While working for Kroger, Trimble requested that his desk be lowered and that Kroger provide him with a second monitor because he typed with his feet due to his disability and working without these accommodations was extremely difficult.  Initially, Kroger granted both accommodations, but Trimble alleges that Kroger stopped providing him with a second monitor after they transferred Trimble to a new department.  Additionally, Kroger insisted that Trimble walk his bike (instead of riding it) through the pavilion on the Kroger campus.  Trimble explained that this would be impossible for him because he does not have any arms.  Trimble claims that his request for an accommodation of not pushing his bike was denied.  Trimble tried unsuccessfully to push his bike through the pavilion, but his disability caused him to have to continue riding his bike through the pavilion.  Kroger subsequently fired Trimble for this, despite Trimble’s outstanding job performance.  See Trimble v. Kroger Co., No. 3:17-cv-00230-SI (D. Or. 2017).

Company will pay $30,000 to Settle Racial Harassment Lawsuit

     A company will reportedly pay $30,000 to settle a racial harassment lawsuit that the Equal Employment Opportunity Commission brought.  The lawsuit claims that the company did not appropriately respond to complaints by an African-American employee that he was experiencing pervasive discrimination from his coworkers.  The coworkers allegedly made comments such as “you people,” “black people are lazy” and “I better watch my wallet around you.”  Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination on the basis of race.  See EEOC v. Gonnella Baking Co., No. 15-cv-4892 (N.D. Ill.).

Illegal to Require Proof that Not HIV-Positive

     A nightclub will reportedly pay $139,366 after a judge entered default judgment against the company for a lawsuit that the Equal Employment Opportunity Commission brought alleging disability discrimination because the nightclub fired its employee for failing to provide medical documentation that she was not HIV-positive.  The owner’s request for the documentation was based on his belief that the employee’s alleged HIV status was hazardous to business for the company.  The alleged conduct is a violation of the Americans with Disabilities Act, which prohibits discrimination against employees on the basis of a disability.  The court awarded all of the relief that the EEOC sought including back pay and other losses to the employee, compensatory damages for mental pain and suffering, and punitive damages.  See EEOC v. Diallo’s Entertainment Inc., No. 4:16-cv-02909 (S.D. Tex.).

EEOC Sues Cheesecake Factory for Disability Discrimination

     The Equal Employment Opportunity Commission recently filed a lawsuit against The Cheesecake Factory, Inc. for failure to provide a reasonable accommodation to a newly hired employee, Oleg Ivanov, who suffered from a disability.  The lawsuit alleges that Cheesecake Factory refused to provide Ivanov, who is deaf, with orientation training that included closed captioned video or American Sign Language interpretation.  The company was aware that the employee was deaf prior to hiring him but still failed to grant Ivanov’s requests for a reasonable accommodation.  The lawsuit further alleges that the inadequate orientation training disadvantaged Ivanov’s ability to track his constantly shifting work hours and his ability to use Cheesecake Factory’s online scheduling system.  The Americans with Disabilities Act mandates that employers provide reasonable accommodations to employees who suffer from a disability unless the accommodation would create an undue burden.  See EEOC v. Cheesecake Factory, Inc., No. 2:16-cv-1942 (W.D. Wash.).

EEOC Settles Race Discrimination Lawsuit

     The EEOC recently settled a lawsuit for $50,000, which alleged that the defendants fired an African-American employee and demoted three other African-American employees because of their race.  The plaintiff alleged that the company’s manager told an African-American manager that the company wanted to “sprinkle a little salt” on the worksite  (meaning replacing black employees with “whites and Mexicans”).  The African-American manager was demoted just a few days later and replaced with a Hispanic manager.  The Hispanic manager fired three African-American employees and replaced them with a Hispanic and two Caucasian employees.  These alleged actions are a violation of Title VII of the Civil Rights Act of 1964.  See EEOC v. OnSite Solutions, LLC, No. 5:15-cv-01066-C (W.D. Okla.).

EEOC Settles Disability Discrimination Lawsuit

     Grocery store Safeway, Inc. will reportedly pay $27,000 in damages, in addition to the employee getting her job back, to settle a lawsuit for disability discrimination brought by the Equal Employment Opportunity Commission.  The EEOC’s Complaint alleged that an employee at a Safeway suffered a work-related injury that inhibited her ability to lift.  Safeway accommodated the employee at first by allowing her to work at the customer service desk.  The store, however, later put her on indefinite unpaid leave, telling the employee that she had expended her time limits for modified duty.  The EEOC claimed that Safeway failed to provide a reasonable accommodation and unlawfully fired the employee due to her disability.  These types of alleged actions are barred by the Americans with Disabilities Act, which prohibits discrimination on the basis of disability.  Employers are required to provide employees with reasonable accommodations unless those accommodations would pose significant expense or undue hardship.  See EEOC v. Safeway Inc., No. 1:15-cv-02955 (D. Md.).

Extension of Vacation Time To Treat Disability Is A Reasonable Accommodation

     The Equal Employment Opportunity Commission recently announced that a poultry company will pay $100,000 among other relief to settle a lawsuit alleging disability discrimination.  The EEOC charged the company with failing to provide a reasonable accommodation to a manger for his disability.  The Complaint claimed that the manager asked to extend his vacation leave, which was previously approved, by seven days because his doctor had restricted him from working for that period.  Rather than approving the leave, the company fired the manager before he had even used all of his vacation time.  This alleged conduct is a violation of the Americans with Disabilities Act, which protects employees from discrimination on the basis of a disability.  See EEOC v. Harrison Poultry, Inc., No. 2:14-cv-0227-WCO (N.D. Ga.).

Illegal to Fire Employee for Sincerely Held Religious Beliefs

     A company will reportedly pay $42,500 and other relief to settle a discrimination lawsuit that the Equal Employment Opportunity Commission filed against it.  The EEOC alleged that the company refused to accommodate an employee’s sincerely held religious beliefs and subsequently fired the employee for his religious beliefs for refusing to work on a Saturday.  Cole’s religious beliefs mandated that he not work on Saturdays in observance of the Sabbath, and the company was typically closed on Saturdays, with only limited exceptions.  The company requested that Cole work on a Saturday.  Cole told the company that he could not work on Saturdays because of his religious beliefs, and the company fired Cole for refusing to work that Saturday.  An employer cannot fire an employee for their sincerely-held religious beliefs pursuant to Title VII of the Civil Rights Act of 1964.  Title VII requires employers to provide employees with reasonable accommodations for their sincerely held religious beliefs unless the accommodations would create an undue hardship.  See EEOC v. Greenville Ready Mix Concrete, Inc., No. 4:16-cv-00094-BO (E.D.N.C.).

Failing to Make Reasonable Accommodations for Disabled Employees is Illegal

     Three car dealerships will reportedly pay $50,000 to settle a lawsuit brought by the EEOC alleging that the dealerships terminated an employee, Shara Rynearson, because of her disability.  The EEOC alleged that in October 2010, after she had been working for the car dealerships for about three months as a sales person, Rynearson notified her supervisor that she had experienced a sudden change in vision, numbness in half of her face, and loss of balance.  The employee went to the emergency room after notifying her supervisor of these problems.  Rynearson was tentatively diagnosed with multiple sclerosis the next day, she was also given instructions not to work until she saw a neurologist.  The employer did not allow Rynearson to take medical leave and instead fired her in November 2010.  The alleged conduct violates the Americans with Disabilities Act because the law requires employers to provide reasonable accommodations to employees with a disability unless the accommodations would cause an undue hardship for the employer.  See EEOC v. Liberty Chrysler, Jeep, Dodge LLC, No. 3:15-CV-00232-HDM-VPC (D. Nev.).

EEOC Settles Sexual Orientation Lawsuit

     The EEOC recently announced that Pallet Companies will pay $202,200 and provide other equitable relief to settle one of the first lawsuits that the EEOC brought alleging sex discrimination based on sexual orientation.  The EEOC’s lawsuit alleged that a lesbian employee suffered repeated harassment from her supervisor because of the employee’s sexual orientation.  The supervisor allegedly made inappropriate comments like “I want to turn you back into a woman” and “you would look good in a dress.”  The EEOC further charged that the company retaliated against the employee by terminating her only days after she reported the incidents to management and the company’s employee hotline.  The EEOC argued that this alleged conduct violated Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex.  See EEOC v. Pallet Companies, d/b/a IFCO, No. 1:16-cv-00595-CCB (D. Md.).

Brad Levine Selected As A Super Lawyer Ohio Rising Star

     Congratulations to Brad Levine, who was recently selected to the 2017 Super Lawyers Ohio Rising Stars list, which is an honor reserved for those lawyers who exhibit excellence in practice.  Only 2.5% of attorneys in Ohio receive this distinction.  He is a 2012 graduate of the University of Toledo College of Law, where he earned a Certificate in Labor & Employment Law.  He also graduated Magna Cum Laude from Ithaca College, obtaining a Bachelor of Science in Communications and a Minor in Writing.

Kroger Settles Disability Discrimination Lawsuit

     Kroger will reportedly pay $33,000 and provide other relief to settle a lawsuit alleging disability discrimination that the Equal Employment Opportunity Commission filed against it.  The lawsuit alleged that Kroger allowed one of its stock persons to work as a cashier as a reasonable accommodation for her disability.  A few months after providing this reasonable accommodation, Kroger learned that the restrictions were permanent, and Kroger fired the employee upon learning this information.  This alleged conduct violates the Americans with Disabilities Act.  See EEOC v. Kroger Co., No. 2:14-cv-13757 (E.D. Mich.).

Company Settles Pregnancy Discrimination Case

     A medical transportation company has reportedly agreed to pay $55,000 to settle a lawsuit alleging pregnancy discrimination filed by the Equal Employment Opportunity Commission.  The lawsuit alleged that an employee informed First Call Ambulance Service, LLC that she was pregnant, and also provided First Call with a doctor’s note that restricted her from lifting patients who weighed more than 200 pounds without assistance.  First Call took this employee off the schedule, told her that she could not work because of her pregnancy, and refused to otherwise accommodate her.  First Call allowed other employees (who were not pregnant) to use a power cot to help lift patients.  This alleged conduct violates Title VII of the Civil Rights Act of 1964.  See EEOC v. First Call Ambulance Service, LLC, No. 3:15-cv-01041 (M.D. Tenn.).

Male-On-Male Sexual Harassment Is Illegal

     A restaurant will reportedly pay $27,500 to settle a male-on-male sexual harassment and retaliation lawsuit filed by the EEOC.  The EEOC’s lawsuit alleges that the restaurant subjected young, male, Mexican-American workers to sexual harassment.  The lawsuit also alleges that the company retaliated against one of the employees after he complained about the sexual harassment.  The accused sexual harasser was a 24-year-old male who secretly videotaped the victims using the men’s bathroom.  The lawsuit further claims that after one employee complained, the company cut his hours, demoted him from server to busing tables, gave him a worse schedule, and excessively and unfairly disciplined the employee.  The alleged conduct is prohibitted by Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on sex.  See EEOC v. Salum Revilla Enterprises, LLC dba Achiote Restaurant, No. 3:15-cv-01974-LAB-RBB (S.D. Cal.).

Company Commits Sex Discrimination By Preferring Male Applicants

     Coca-Cola Bottling Company of Mobile, will reportedly pay $35,000 to settle a sex discrimination lawsuit that was brought by the EEOC.  The lawsuit alleges that the company refused to hire a female applicant for two open warehouse positions because of her sex.  The company instead hired two male applicants who were less qualified than than her.  The EEOC additionally alleged that the company failed to keep certain application materials that were related the positions for which owed applied, and that the company’s failure to maintain these materials violated federal record-keeping laws.  The alleged conduct violates Title VII of the Civil Rights Act of 1964.  Title VII prohibits employers from discriminating against employees and prospective employees because of their sex.  See EEOC v. Coca-Cola Bottling Co. Consolidated, No. 1:15-cv-00486 (S.D. Ala.).

Employers Should Provide Reasonable Accommodations for Short-Term Disability Leave

     RockTenn, a paper company, reportedly has agreed to pay $187,500 to settle a disability discrimination lawsuit filed by the Equal Employment Opportunity Commission.  The lawsuit alleged that RockTenn fired an employee because of his disability during his approved short-term-disability leave.  The employee underwent coronary bypass surgery in January 2011 and was given leave through the middle of April 2011.  His doctor cleared him to return March 21, 2011, before his initially scheduled return to work date.  The employee let RockTenn know that he planned to return on March 21st.  Despite this, RockTenn terminated him on March 10, 2011.  The Americans with Disabilities Act prohibits an employer from discriminating against employees because of a disability.  See EEOC v. RockTenn Co. & RockTenn Services, Inc., No. 1:14-cv-00973 (W.D. Mich.).

Seizure Disability Lawsuit Settled by EEOC

     Neenah Paper reportedly has agreed to pay $33,000 to settle a disability discrimination lawsuit that the Equal Employment Opportunity Commission brought against it.  The lawsuit alleged that the company had refused to allow an employee to return to his job for seven months because of his seizure disorder disability.  Additionally, the lawsuit alleged that the company mandated the employee to take his anti-epileptic medication under observation during his work shifts in the presence of either the plant nurse or certain designated co-workers.  The employee’s neurologist had cleared the employee to return to work, but the company refused to allow the employee to return until a physician confirmed that the employee no longer had the condition. These alleged actions violate the Americans with Disabilities Act, which prohibits employers from discriminating on the basis of disability.  See EEOC v. Neenah Paper, Inc., No. 2:15-cv-00113 (W.D. Mich.).

Employees Permitted to Complain About Working Conditions

     An appellate court ruled in favor of employee claims under the National Labor Relations Act (“NLRA”) and against MikLin Enterprises, Inc. doing business as Jimmy John’s (“Jimmy John’s”).  The ruling came after a group of employees who put up posters were fired “for being the leaders and the developers” of the posters.  The posters were placed in general public areas both in stores and in other public places within two blocks of the store.  The posters suggested that, because Jimmy John’s employers were not permitted paid sick leave, the customers eating at those restaurants risked becoming sick from food prepared by sick employees.  The National Labor Relations Board held that Jimmy John’s violated the NLRA by firing or disciplining employees who engaged in protected concerted activity and for removing protected material from public places and bulletin boards, among other violations.  The Eighth Circuit ruled that the Board’s decisions were supported by substantial evidence and granted the Board’s application for enforcement and denied Jimmy John’s petition for review.  See MikLin Enterprises, Inc. v. NLRB, No. 14-3099 (8th Cir. 2016).

Servers, Waitresses and Waiters Cannot be Forced to Share Tips with Cooks

     An appellate court approved the Department of Labor’s ability to regulate “tip pools” and “tip credits.”  The Court ruled that employers may not force employees to pool their tips with cooks and other typically non-tipped employees even when the employees were receiving at least minimum wages before tips.  The Court also confirmed the Department’s authority to regulate tip pools where a tip credit is not utilized and found that the Department’s formal rule that extended the tip pool restrictions of Section 203(m) to all employers, not just those who take a tip credit, “is consistent with the FLSA’s language, legislative history, and purpose.”  Oregon Rest. & Lodging Ass'n v. Perez, Nos. 13-35765, 14-15243, 2016 U.S. App. LEXIS 3119, at *25 (9th Cir. Feb. 23, 2016).

Can’t Pay Women Less Than Men for Doing Same Job

     NFI RoadRail, LLC and NFI Industries, Inc. have reportedly agreed to pay $45,000 to settle a gender discrimination lawsuit.  The lawsuit alleged that the companies paid a female director less than three male directors who had worked in the same role.  The female director discovered the pay disparity after she saw a pay stub for one of the former male directors.  The Equal Pay Act of 1963 prohibits employers from paying women a lower salary than men for equal work.  See Equal Employment Opportunity Commission v. NFI Industries, No. 3:14-cv-00181-N (N.D. Tex. 2014)

Illegal to Not Hire Biracial Applicant Based on Race

    Windings, a manufacturing company, has reportedly agreed to pay $19,500 to settle a race discrimination lawsuit brought by the Equal Employment Opportunity Commission.  The lawsuit alleges that the company hired a white employee instead of a biracial (African-American and white) employee because of his race.  The lawsuit alleged that the biracial applicant was qualified, had previous experience, and passed job-related assessment tests.  Making a hiring decision based upon an applicant’s race is prohibited by Title VII of the Civil Rights Act of 1964.  See Equal Employment Opportunity Commission v. Windings, Inc., No. 15-cv-02901.

U.S. Supreme Court Upholds Class Action Judgment

     The Supreme Court of the United States ruled 6-2 recently to reject Tyson Foods challenge of a class action award for certain of its employees.  The lower court had entered judgment of nearly $5.8 million for the class action lawsuit that arose because of alleged underpayment of wages.  Over 3,000 workers sued Tyson to be compensated with overtime pay for time that they had spent putting on and removing protective clothing before using sharp knives used for their job.  Tyson did not log these employees hours, so plaintiffs’ attorneys instead used statistics experts to estimate the amount of overtime wages that Tyson owed to the plaintiffs by analyzing video footage of the employees putting on and removing the protective gear.  Tyson Foods argued that the class should not have been allowed because it relied on representative evidence and statistics that assumed all class members were identical to the average in order to calculate liability and damages.  The Supreme Court rejected Tyson’s argument.  The Court explained: “[i]n many cases, a representative sample is ‘the only practicable means to collect and present relevant data’ establishing a defendant’s liability.”  See Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, 2016 U.S. LEXIS 2134 (Mar. 22, 2016).

Sushi Restaurant Agrees to Pay for Overtime Violations

     Two sushi restaurants have agreed to pay over $460,000 in back wages and liquidated damages, and over $150,000 in additional civil penalties for minimum wage, overtime, and record keeping violations.  The Department of Labor claimed that sushi chefs and other employees at the restaurants worked up to 90 hours a week but were not paid for all hours that they worked, were shorted overtime pay, and had pay deducted for taking short breaks.  The Fair Labor Standards Act requires employers to pay covered, nonexempt workers at least the federal minimum wage of $7.25 for all hours worked, and time and a half overtime wages for all hours worked over forty in a week.  See http: //www.dol.gov/ newsroom/releases/ whd/whd20160125-0

Popeye’s Franchise to pay $36,000 to Settle Age Discrimination Lawsuit

     A Popeye’s Louisiana Kitchen franchise has agreed to pay $36,000 in order to resolve an age discrimination lawsuit.  The lawsuit alleged that the restaurant’s general manager refused to hire three prospective employees because they were “too old.”  According to the lawsuit, the job application asked them to identify their age, and during the subsequent interviews the general manager asked two of the applicants how old they were and then told them that they were too old to work for the restaurant.  The Age Discrimination in Employment Act prohibits discrimination against individuals who are aged 40 or older.  See EEOC v. Coatesville Chicken, LLC d/b/a Popeyes Louisiana Kitchen, No. 15-5287 (PSD) (E.D. Pa.).

EEOC Files Sexual Harassment and Retaliation Lawsuit

     The EEOC recently filed a lawsuit alleging that a company subjected a female employee to a sexually hostile work environment and retaliated against her after she complained about the harassment and filed criminal charges against the persons she accused of harassment.  The Complaint claims that the employee, who worked as a server and cashier, was regularly subject to sexually offensive comments and sexual harassment by the restaurant manager and several kitchen workers by touching her in a sexual manner.  The harassment continued even after the plaintiff had complained to her supervisor.  The plaintiff had her hours reduced and eventually was removed from the work schedule altogether after she filed criminal charges against the manager and kitchen staff.  See EEOC v. Mayflower Seafood of Goldsboro, Inc., No. 5:15-CV-006360-BO (E.D.N.C. 2015).

Wellness Center to Pay $37,000 to Settle Pregnancy Discrimination Lawsuit

     The EEOC recently announced that a wellness center ithat specializes in cosmetic skin care treatments has agreed to pay $37,000 to settle a pregnancy discrimination lawsuit.  The EEOC alleged that an employee at Shefa Wellness Center was fired only two days after she told the owner of the company that she was pregnant.  The employer told the plaintiff that she had deceived the company by not informing the company of her pregnancy during her interview.  This alleged conduct violated the Pregnancy Discrimination Act because employers may not subject women to discrimination because of their pregnancy.  See EEOC v. CFS Health Management, Inc., No. 1:15-cv-00845 (N.D. Ga. 2015).

Kroger to Pay $42,500 to Settle Sexual Harassment Lawsuit

     The EEOC recently announced that Kroger has agreed to pay $42,500 to settle a sexual harassment lawsuit.  The EEOC lawsuit alleged that Kroger subjected one of its teenaged employees to sexual harassment and that Kroger also failed to take action to stop a male coworker from abusing the employee.  The EEOC stated that the harassment started soon after the teenager was hired and continued throughout her employment with Kroger.  The EEOC also claimed that Kroger did not take corrective action until the employee’s final complaint.  See EEOC v. Kroger Co., No. 4:14-cv-00564-JLH (E.D. Ark.).

Senior Living Center Agrees To Settle Disability Discrimination Lawsuit

     Brookdale Senior Living Communities, Inc. has agreed to pay $112,500 plus other relief to settle a disability discrimination lawsuit brought by the EEOC.  The lawsuit alleged that Brookdale discriminated against an employee who suffered from fibromyalgia.  She had requested a temporary modified work schedule, an ergonomic chair, and adjustments to the lighting in her office.  Brookdale forced the employee to stay on leave until she could return without any restrictions or accommodations.  She continued to request accommodations and was subsequently fired.  Under the Americans with Disabilities Act, reasonable accommodations should be granted unless it would create an undue hardship for the employer.  Additionally, an employer may not fire an employee for exercising her rights under the Americans with Disabilities Act.  See EEOC v. Brookdale Senior Living Communities, Inc., No. 14-cv-02643-KMT (D. Colo.).

Houlihan’s Sued For Illegal Tip Pool

     The U.S. Department of Labor recently filed a lawsuit against several Houlihan’s Restaurants franchises.  The complaint alleges that the company violated the minimum wage, overtime, and record-keeping requirements of the Fair Labor Standards Act.  The lawsuit was filed on behalf of about 1,430 current and former Houlihan’s employees and seeks back wages, tips, and liquidated damages.  The complaint alleges that the Defendants required the employees to pay tips into a tip pool, which was then used to pay employees for tasks completing custodial and kitchen work, and that Houlihan’s regularly kept part of the employees’ tips, creating an illegal tip pool.  The complaint also alleges that employees would work off of the clock and that the employees were not compensated overtime when they split their work at more than one Houlihan’s location.  Tip pools may only include those employees who customarily and regularly receive tips, and employers may not share in the tip pool themselves.  See Perez v. A.C.E. Restaurant Group Inc., No. 1:15-cv-07149-JHR-AMD (D.N.J. 2015).

Wellness Center to Pay $30,000 to Settle Disability and Retaliation Lawsuit

     Baker Wellness Center has reportedly agreed to pay $30,000 plus other relief to settle a disability discrimination lawsuit filed by the Equal Employment Opportunity Commission.  The EEOC alleged that the Wellness Center violated the Americans with Disabilities Act by discriminating against a diabetic employee because of her disability and retaliated against her for not reporting certain medical information that Baker illegally requested on its application form.  The ADA prohibits employers from asking questions requiring medical information at the pre-offer stage of employment and also prohibits employers from taking adverse employment actions against employees because of their disability, request for reasonable accommodation, or complaints of discrimination.  See EEOC v. Baker Wellness Center, Inc., No. 3:14-cv-00808 (M.D. La. 2015).

Pregnancy Discrimination Lawsuit Settled by EEOC

     The Equal Employment Opportunity Commission announced that Arthur’s Restaurant and Bar, a fine dining steakhouse, will pay $20,000 to settle a pregnancy discrimination lawsuit that the EEOC brought against the restaurant.  The EEOC alleged that Arthur’s fired cocktail server Jennifer Todd during her seventh month of pregnancy, when the company told her that it decided she should begin her maternity leave early.  Arthur’s defended their actions by saying that they were acting out of concern for the health of the mother and baby.  The employee was fired shortly after the restaurant’s owner made a comment to her that she was “starting to show.”  This alleged conduct Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, which prohibits employers from firing an employee because of her pregnancy, or requiring an employee to take maternity leave while the employee is still able to work.  See EEOC v. Restaurant & Bar Arthurs, Ltd., No. 3:14-CV-03033-N (N.D. Tex.).

National Tire and Battary to Pay $22,500 to Settle Religious Discrimination Lawsuit

     National Tire and Battery has reportedly agreed to pay $22,500 to settle a national origin and religious discrimination lawsuit that the Equal Employment Opportunity Commission brought on behalf of one of NTB’s former employees.  The EEOC’s suit alleged that the employee was harassed by coworkers because of his religion and national origin by calling him “Taliban,” “al-Qaeda,” “bin Laden,” and “terrorist” and by accusing him of making bombs.  The allegations also assert that the former employee constantly complained to management about the harassment, but nothing was done to stop it.  National origin and religious discrimination violates Title VII of the Civil Rights Act of 1964.  See EEOC and NTW, LLC d/b/a National Tire and Battery, No. 15-cv-1681 (N.D. Ill.).

Firing an Employee with Cancer Can Be Disability Discrimination

     DAP Products Inc. is being sued by the EEOC for allegedly refusing to allow a capable employee with cancer to return to work.  The lawsuit claims that the company discharged the employee from his position as a production operator because he had been diagnosed with and underwent surgery for prostate cancer.  After taking a period of leave, the employee was able to return and perform his job, but DAP refused to allow him to return and forced him instead to take an extended leave.  DAP later fired the employee for exceeding company leave limitations.  This alleged conduct violates the Americans with Disabilities Act, which protects employees from discrimination based on their disabilities and requires employers to make reasonable accommodations for employees with known disabilities.  See Equal Employment Opportunity Commission v. DAP Products, Inc., No. 3:15-cv-3423-D (N.D. Tex.).

Employer Calling Employees Ignorant, Lazy or Stupid Because Of Their Country Creates a Hostile Work Environment

     The EEOC recently filed a lawsuit against Glaser Organic Farms, alleging that Glaser subjected its kitchen employees to a hostile work environment because of the employees’ national origin and race.  The lawsuit also included a retaliation charge as a result of Glaser terminating an employee for filling a discrimination charge with the EEOC.  The EEOC’s suit alleges that a kitchen manager created a hostile work environment for Hispanic employees by making disparaging comments such as “You Mexicans are ignorant, “Mexicans are lazy,” and “Mexicans are stupid.”  Glaser fired the employee who filed a discrimination charge with the EEOC.  This conduct violates Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race and national origin, and prohibits an employer from retaliating against employees who oppose this type of discrimination.  See EEOC v. Glaser, No. 1:15-cv-23642 (S.D. Fla.).

Retaliation Against Relatives Illegal

     The EEOC recently filed a lawsuit against Philips Lighting for firing an employee after Philips learned that the employee was the grandson of a former employee who had filed a lawsuit against the company.  Philips hired Jake Lee Velasquez to work as a security guard at its lighting facility in Salina, Kansas.  On the first day of work, Velasquez was fired after he was recognized to be the grandson of a former employee with a pending discrimination suit against the company.  The EEOC says that Philips specifically referenced Velasquez’s grandfather in forbidding Velasquez from returning to work.  Philips alleged actions violate Title VII of the Civil Rights Act of 1964, which prohibits retaliatory actions by employers that would discourage employees from complaining about discrimination.  See Equal Employment Opportunity Commission v. Philips Lighting, No. 2:15-cv-9296 (D. Kan.).

Half Million Dollars Awarded In Religious Discrimination Lawsuit

     The EEOC won its employment discrimination lawsuit against Consolidation Coal Company and its parent CONSOL Energy, Inc.  The employee worked in Defendants’ mine for over 35 years when a new hand-scanning method was installed to track when employees clocked in and out of work.  The employee informed Defendants that using the hand-scanning technology would violate his sincerely held religious beliefs as an Evangelical Christian.  In response, Defendants refused to offer any alternate means of tracking the employee’s attendance and time and told him that he would be disciplined and perhaps discharged if he did not use the hand-scanner.  The employee was forced to retire.  The jury found that Defendants had violated federal law by forcing a long-time employee to retire because they refused to accommodate his sincerely-held religious beliefs.  The Court issued an order awarding $586,860 in lost wages, benefits, and injunctive relief.  Defendants were also permanently enjoined from committing similar acts in the future in violation of Title VII.  Employers must grant reasonable accommodations for employee religious beliefs that conflict with work requirements pursuant to Title VII of the Civil Rights Act of 1964, unless the reasonable accommodation would create an undue hardship on the employer’s business.

Company Paying Only Tips And Room And Board Violates Minimum Wage And Overtime Laws

     The Department of Labor’s Wage and Hour Division has found that Wei’s Hibachi Buffet, LLC violated the overtime, minimum wage, and record keeping violations of the Fair Labor Standards Act (“FLSA”).  Hibachi Buffet did not pay servers a base hourly wage but instead forced them to work only for tips and room and board.  Hibachi Buffet also failed to pay kitchen employees time and a half overtime wages for hours worked over 40 in a work week, as is required under the FLSA.  The department also found that Hibachi Buffet did not maintain records for all hours that its employees worked.  Hibachi Buffet has agreed to comply with the standards of the FLSA and to pay almost $100,000 in back wages and liquidated damages among twelve employees. See www.dol.gov/opa/ media/press/whd/WHD20151802.htm

Lawsuit Seeks Equal Pay For Woman

    SOCI Petroleum/Santmyer Oil Company has been charged by the Equal Employment Opportunity Commission of violating federal equal pay laws by paying a female employee less than the male predecessor in her position for performing substantially the same work.  The EEOC’s Complaint states that in 2009 Lori Bowersock, who had worked for SOCI in Wooster, Ohio since 2006, replaced the former male human resources manager but was paid less than him.  The Complaint also alleges that SOCI condoned derogatory remarks made to female employees and that its gave female employees less credit for their accomplishments than their male counterparts.  These alleged actions violate the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964.  EEOC filed suit in the U.S. District Court for the Northern District of Ohio Eastern Division.  The EEOC seeks permanent injunctive relief to prohibit SOCI from future discrimination by providing equal pay to women for equal work, access to equal employment opportunities for women, lost wages, compensatory and punitive damages.  See EEOC v. SOCI Petroleum/Santmyer Oil Co., No. 5:15-cv-02017-SL (N.D. Ohio).

Casino Sued For Age And Sex Discrimination

     Reserve Casino Hotel was charged this week by the Equal Employment Opportunity Commission for failing to hire older and female candidates with equal or greater qualifications than males and young applicants who were hired in violation of federal age discrimination law. Reserve Casino Hotel bought the hotel in January 2011 and subsequently hired 240 employees.  The EEOC alleges that Reserve Casino Hotel chose to hire males and younger applicants over their more highly qualified female counterparts and that it made comments about getting rid of the “gray hairs” and that former company’s workforce contained “too many old, fat, ugly, and gray-haired employees.”  The EEOC’s investigation also revealed a marked disparity between female and male hires, and a notably greater number of applicants under forty years of age were hired over applicants over forty years of age.  See EEOC v. RCH Colorado, No. 1:15-cv-02170-NYW (D. Colo.).

Hotel to Pay $45,000 in Religious Discrimination Settlement

     A hotel group has agreed to pay $45,000 to settle a religious discrimination charge filed by the EEOC. The hotel group was charged with refusing to provide a religious accommodation for one of their employees who had requested to have all Sabbaths off from work. Initially the request was honored until a change in management took place, after which her requests for religious accommodation were ignored.  She was then fired.   In addition to providing monetary relief to the employee, the hotel group will implement policies designed to prevent religious discrimination and conduct training on anti-retaliation and anti-discrimination laws.  The hotel group will also be required to report any future requests for accommodation to the EEOC.  See Equal Employment Opportunity Commission v. Landmark Hotel Group, LLC d/b/a Comfort Inn Oceanfront South, No. 4:12-cv-158 (E.D.N.C.).  

EEOC Settles Sexual Harassment and Retaliation Charges

     The Silver Diner has agreed to pay $25,000 to settle a sexual harassment and retaliation lawsuit. The EEOC filed the lawsuit after the restaurant allegedly subjected a waitress to a sexually hostile environment, such as the restaurant co-owner rubbing up against her.  The restaurant limited the waitress’s hours and then fired her after she complained about the harassment.  Title VII of the Civil Rights Act of 1964 prohibits sexual harassment in the workplace and retaliation for complaining about discrimination. In addition to paying the $25,000 settlement, the restaurant, under a five year consent decree, will conduct annual training that will focus on sexual harassment and retaliation.  See Equal Employment Opportunity Commission v. Silver Diner, Inc., No. 1:12-CV-01002 (M.D.N.C.).

EEOC Sues Extended Stay Hotels for Sex Discrimination

     The EEOC has sued Extended Stay Hotels for allegedly paying their male employees higher wages than their female employees, even though they all performed equal work, in violation of the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964.  Latoya Weaver worked as a guest services representative for five years at Extended Stay Hotels.  Extended Stay Hotels, however, allegedly paid new male employees more than it paid Ms. Weaver, even though they allegedly performed equal work.  The EEOC is seeking equitable relief that provides equal employment for the female employees as well as lost wages, punitive and compensatory damages, and other affirmative relief for the female employees who were affected by the wage discrimination.  See EEOC v. HVM L.L.C., dba Extended Stay Hotels, No. 8:13-cv-01980 (D. Md.).

EEOC Files Lawsuit Against Lifecare Medical Services

     The EEOC has filed suit against Lifecare Medical Services in Cleveland, Ohio under the Americans with Disabilities Act.  Lifecare Medical Services allegedly fired an employee because of his Multiple Sclerosis after he requested additional leave time for his disability.  additional leave as a reasonable accommodation for his MS, but instead was issued disciplinary actions for absences related to his disability.  In October 2010, Adair requested, as a reasonable accommodation, additional points under the company's no-fault attendance policy.  Lifecare Medical Services responded to the request for accommodation by firing Adair on Oct. 13, 2010.  See Case No. 5:13-cv-01447 (N.D. Ohio). 

Sales Tax on Attorney’s Fees

     Can you believe that Ohio's Governor has proposed a 5% sales tax on attorney's fees?  If enacted, this proposal could require employees like you to pay sales tax on any attorney's fees that they pay to enforce their employment rights.  Additionally, you would have to pay sales tax when you need to hire an attorney for legal services such as to write a will or administer an estate, to adopt a child or get divorced, or to file for bankruptcy.  I am a member of bar associations that have spoken against this legislation, such as the Ohio State Bar Association and the Cleveland Metropolitan Bar Association.  We believe that it places an unnecessary burden on Ohio workers and impedes access to the legal system.  Hopefully, the proposal will not become law.  I will keep you informed of the status of this proposal. What can you do???  Contact your state representative and ask him or her to vote against a sales tax on legal services.  UPDATE:  OUR EFFORTS WERE SUCCESSFUL.  THE LAW DID NOT PASS.

Top Rated Lawyer in Labor and Employment

     American Lawyer Media and Martindale-Hubbell™ recently selected Steve Voudris as a 2013 Top Rated Lawyer in Labor & Employment.  American Lawyer Media is a leading provider of news and information to the legal industry.  

Illegal For Employer To Take Portion Of Tips

     With rare exception, it is illegal for an employer or supervisor to take a portion of a waiter or bartender's tips. According to the U.S. Department of Labor Wage and Hour Division, "tips remain the property of the employee that received them and the employee cannot be required to turn over his or her tips to the employer."  U.S. DOL Fact Sheet #15A.  Although tip pooling among certain employees is permitted, a "valid tip pool may not include employees who do not customarily and regularly receive tips, such as dishwashers, cooks, chefs, and janitors."  U.S. DOL Fact Sheet #15.

Arbitration Agreements

     Upon hiring an employee, some employers require the signing of an arbitration agreement.  By agreeing to arbitration, the employee may waive the right to a jury trial even if the employer engages in illegal activities, such as discrimination, years later in the employment relationship.  Instead, if the arbitration agreement is valid, any dispute would be resolved by an arbitrator, who often is a retired judge or other lawyer (rather than a jury of the employee's peers).  An employee should consider any requirement to sign an arbitration agreement when weighing job offers.  

Complaining To Co-Workers About Work Conditions

      The National Labor Relations Act protects workers from being fired or disciplined for discussing or complaining about work conditions with fellow employees.  Although the Act generally governs union activities or efforts to form a union, Section 7 of the Act applies to non-union work places as well.  It provides:  "Employees shall have the right . . . to  engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."

Severance Agreements

     When terminating employees, the employer often asks the employee to sign a severance agreement, where the employee agrees to accept a nominal sum of money in exchange for releasing his or her right to sue for employment discrimination and other types of wrongful termination.  If your employer asks you to sign a severance agreement, you should have an attorney review it and advise you of your rights.  

Retaliation for Planning to File Workers' Compensation Claim

     An employee may file an Ohio common law claim for retaliatory firing after reporting a workplace injury to his or her employer, even if the employee had not yet filed for workers' compensation. In order to prevail, the employee must prove that the termination was retaliatory and that the employer lacked an overriding business justification for the firing.  The Ohio Supreme Court's ruling is an extention of the rights provided in Ohio Revised Code Section 4123.90, which prohibits firing of workers in retaliation for filing workers' compensation claims.  Even if the employee had not yet filed for workers' compensation, the law is now clear that the employee can pursue a common law action.  Sutton v. Tomco Machining, Inc., 129 Ohio St.3d 153, 950 N.E.2d 938 (2011).

Equal Pay Act

     Pursuant to the Equal Pay Act of 1963, an employer cannot pay a woman less than a man (or vice-versa) for a job that requires equal skill, effort and responsibility and that is performed under similar working conditions. Exceptions are permitted when the payment is made pursuant to a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or any other legitimate business reason.

AV Preeminent Peer Review Rating

     Stephan Voudris recently received the highest possible Peer Review Rating by Martindale-Hubbell in the Litigation Practice Area:  an AV Preeminent Rating of 5.0 out of 5.0.  Peer Review Ratings attest to a lawyer's legal ability and professional ethics in specific Areas of Practice, and reflects the confidential opinions of members of the Bar and Judiciary.  The Legal Ability Rating reflects the professional ability in the area where the lawyer practices, the lawyer's expertise, and other professional qualifications. Peer Review Ratings are based on performance in specific areas, rated on a scale of 1-5; 1 being lowest and 5 being highest: Legal Knowledge, Analytical Capabilities, Judgment, Communication Ability and Legal Experience.  The AV rating reflects that the lawyer meets the very high General Ethical Standards.  AV Preeminent and BV Distinguished are certification marks of Reed Elsevier Properties Inc., used in accordance with the Martindale-Hubbell® certification procedures, standards and policies.

Justice Department Sues Allied Home for Broker Fraud

      The Justice Department is taking action against a home mortgage lender for conduct that led to the housing crisis.  In a civil fraud action filed in New York, the complaint alleges that Allied Home Mortgage Capital Corp. engaged in reckless mortgage lending, violated FHA mortgage insurance requirements, and lied about its compliance.  U.S. ex rel. Belli v. Allied Home Mortgage Capital Corp., No. 11-05443 (S.D.N.Y.). 

AT&T Settles Nationwide Age Discrimination Lawsuit

     AT&T has settled a lawsuit by the EEOC accusing it of age discrimination for refusing to rehire tens of thousands of retired ex-employees.  The consent decree requires AT&T to end any prohibitions against rehiring workers who left under several past retirement programs.  EEOC v. ATT Inc., No. 09-07323 (S.D.N.Y.).

     


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     Past results in the above cases are not a guarantee of future results.  The mere fact that a particular type of case was resolved for a particular amount should not be taken to indicate that all such similar cases would be resolved for a like sum.  Each case is unique and dependent on the particular facts and circumstances of that case, the law in effect at the time the case was decided, the strengths and weaknesses of the case, the severity of the damages, the credibility of the witnesses, and numerous other case-specific factors that influence the settlement or verdict amounts.

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