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Phillips Murrah attorneys present for Construction Financial Management Association

Attorney David Walls addresses construction industry professionals at September's CFMA meeting.

Attorney David Walls addresses construction industry professionals at September’s CFMA meeting.

David A. Walls, Construction Law Attorney, and Byrona J. Maule, Phillips Murrah Director and Employment Law Attorney, addressed construction industry professionals at a September meeting for Construction Financial Management Association.

Walls presented an update regarding American Institute of Architect changes to standard form construction industry contracts. Maule followed, speaking on the impact of Oklahoma’s medical marijuana laws on employment law.

Maule’s presentation focused on drug and alcohol testing, policy impacts on drug and alcohol testing and anti-discrimination, and preemption issues under the Controlled Substance Act, the Drug Free Workplace Act and the Federal Motor Carrier Safety Act.

As a result, she said, testing procedures need to be updated or changes, policies will have to be updated, and training will be needed for managers.

For more information about the Oklahoma chapter of CFMA, please click here.

NLRB Ditches Browning-Ferris Joint Employer Test

Published on December 14, 2017

NEW YORK — A divided National Labor Relations Board on Thursday erased the landmark expansion of its test for determining joint employment that it had issued in the 2015 Browning-Ferris Industries case, voting along party lines to revert back to its previous standard.

Thursday’s NLRB majority said that while the panel in Browning Ferris Industries was driven by a “well-intentioned” desire to protect employees’ collective bargaining rights with third parties, the standard it created has five “major” problems. (AP)

In the 3-2 vote, the board’s Republican members overturned the standard set in BFI that under the National Labor Relations Act, a company and its contractors or franchisees can be deemed a single joint employer even if the company hasn’t exerted overt control over workers’ terms and conditions.

The majority was composed of NLRB Chair Philip Miscimarra, who penned a dissent in BFI, and the board’s two newest members, Bill Emanuel and Marvin Kaplan. Democratic members Mark Gaston Pearce and Lauren McFerran, who were both in the majority in BFI, issued a joint dissent.

“We return today to a standard that has served labor law and collective bargaining well, a standard that is understandable and rooted in the real world,” the board majority said. “It recognizes joint employer status in circumstances that make sense and would foster stable bargaining relationships.”

In the BFI decision, the majority had determined that Browning Ferris was a joint employer of recycling workers provided by staffing agency Leadpoint Business Services Inc. at a BFI-owned recycling facility in Milpitas, California.

Before the BFI ruling, the NLRB’s test rested on a business having “direct and immediate” control over terms and conditions of employment. In Browning-Ferris, the board revised the standard to include “indirect control” or the ability to exert such control.

In Thursday’s ruling, the board returned to its “direct and immediate” control standard, saying the BFI test confused the definition of a joint employer and threatened to produce “wide-ranging instability” in bargaining relationships.

“A finding of joint-employer status shall once again require proof that putative joint employer entities have exercised joint control over essential employment terms (rather than merely having ‘reserved’ the right to exercise control), the control must be ‘direct and immediate’ (rather than indirect), and joint-employer status will not result from control that is ‘limited and routine,’” the board majority said. “We think that the Browning-Ferris standard is a distortion of common law as interpreted by the board and the courts, it is contrary to the [National Labor Relations Act,] it is ill-advised as a matter of policy, and its application would prevent the board from discharging one of its primary responsibilities under the Act, which is to foster stability in labor-management relations.”

The NLRB majority said that while the panel in BFI was driven by a “well-intentioned” desire to protect employees’ collective bargaining rights with third parties, the standard it created has five “major” problems. Among them are that the BFI test exceeds the board’s statutory authority and that the change the board wrought regarding the NLRA’s definition of “employer” “is solely within the province of Congress.”

The majority also said that to the extent the BFI decision sought to correct a perceived inequality in the amount of bargaining leverage workers had due to complex business relationships, that inequality “was the wrong target, and expanding collective bargaining to an employer’s business partners was the wrong remedy.”

“Business entities enter into a variety of relationships, and they have different interests and varying degrees of leverage in their dealings with one another,” the panel majority said Thursday. “There are contractually more powerful business entities and less powerful business entities, and all pursue their own interests. The board would need a clear congressional command — and none exists here — before undertaking an attempt to reshape this aspect of economic reality.”

Using the pre-BFI test, the board on Thursday upheld a ruling by Administrative Law Judge Robert Ringler that Hy-Brand Industrial Contractors Ltd. and Brandt Construction Co., which are construction companies owned by the same individuals, were joint employers and both liable for illegally firing seven employees who had gone on strike to protest their wages and working conditions.

In a joint dissent, Pearce and McFerran said the Hy-Brand ruling brought back a restrictive test, wasn’t the proper vehicle for revisiting the joint employer standard at all since it was really a single employer case and resulted from “a deeply flawed process” meant to achieve a desired result quickly.

The dissenters argued that the board majority failed to examine relevant data and articulate a satisfactory explanation for its action as required under the Administrative Procedure Act, saying the decision “bears little relationship to the facts, which, as explained, do not fairly present a genuine joint-employer issue.”

The board majority also failed to notify the public that a reversal of precedent was under consideration, and didn’t solicit briefs — a process followed before deciding the BFI case, according to the dissent.

“Even a cursory glance at today’s decision reveals that the majority’s policy basis for overruling BFI is entirely speculative: pages upon pages bemoaning the changes supposedly wrought by BFI and their potential catastrophic effects, but no real-world examples or even remotely plausible hypotheticals,” Pearce and McFerran said. “It is reasonable to infer that our colleagues do not want to engage the public for fear of what they might learn — namely, that none of the predicted effects of BFI have actually come to pass.”

The respondents were represented by Stanley Niew of the Law Offices of Stanley E. Niew PC.

The NLRB general counsel was represented by Patricia Hollis McGruder.

The case is Hy-Brand Industrial Contractors Ltd. and Brandt Construction Co., case numbers 25–CA–163189, 25–CA–163208, 25–CA–163297, 25–CA–163317, 25–CA–163373, 25–CA–163376, 25–CA–163398, 25–CA–163414, 25–CA–164941, and 25–CA–164945, all before the National Labor Relations Board.

EEOC seeks input on FY 2018-2022 strategic plan

Published on December 8, 2017

WASHINGTON — The U.S. Equal Employment Opportunity Commission (EEOC) has released for public comment a draft of its Strategic Plan for Fiscal Years 2018-2022, the agency announced today. The draft plan can be found at Regulations.gov.  Comments must be submitted by 5:00 pm ET on Jan. 8, 2018. This draft plan has not been approved by the Commission and is still under review.

The Strategic Plan serves as a framework for the Commission in achieving its mission through the strategic application of the EEOC’s law enforcement authorities, preventing employment discrim­ination and promoting inclusive workplaces through education and outreach, and organizational excel­lence. The EEOC has been the leading federal law enforcement agency dedicated to preventing and remedying employment antidiscrimination laws and advancing equal opportunity for all in the work­place since 1965. Every four fiscal years, Congress requires executive departments, government corporations, and independent agencies to develop and post a strategic plan on their public website. These plans direct the agency’s work and lay the foundation for the development of more detailed annual plans, budgets, and related program performance information in the future. The EEOC is currently operating under the Strategic Plan for Fiscal Years 2012 – 2016, as amended through 2018.

The process for developing this plan has been highly inclusive and collaborative. The plan was created by working groups comprised of staff from the EEOC’s headquarters and field offices, with a broad range of internal and external expertise and understanding of the programs and activities con­ducted within the agency. We are now continuing this inclusive effort by soliciting comments from our public partners, including advocacy groups and individuals. Public input is vital to our efforts to ensure accountability to our nation’s workers, employers, and taxpayers in general.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov.  Stay connected with the latest EEOC news by subscribing to our email updates.

Like a horror movie villain, Obama overtime rule fight won’t die

Published on October 30, 2017

New York — The Obama administration’s 2016 overtime rule was left for dead after a Texas federal judge struck it down, but the controversial regulation started stirring again a day before Halloween when the U.S. Department of Labor decided to appeal, a move experts said is designed to protect the agency’s authority to set a salary threshold for overtime exemption that’s more to the Trump administration’s liking.

The Labor Department notified U.S. District Judge Amos Mazzant on Monday that it would be appealing his August order invalidating the Obama administration’s 2016 rule that greatly expanded the Fair Labor Standards Act’s overtime exemptions for executive, administrative and professional, or EAP, workers. The rule would have doubled the minimum salary required to qualify for the exemption from $23,660 annually to just over $47,000 per year, increased the overtime eligibility threshold for highly compensated workers from $100,000 to about $134,000, and created an index for future increases.

Labor Secretary Alex Acosta has indicated on numerous occasions that the Trump DOL would seek to write a revised version of the rule that sets a salary level somewhere between the one proposed in 2016 and the existing threshold of $23,660, set in 2004 by the Bush administration.

Locke Lord LLP partner Richard Glovsky pointed out that a notice of appeal is a perfunctory step that simply reserves a party’s right to pursue an appeal. “My impression is that the DOL is not 100 percent sure what it wants to do,” Glovsky told Law360. “It wants to keep its options open.”

In a statement shortly after it filed Monday’s notice, the DOL indicated that it will ask the Fifth Circuit to stay the case as soon as the appeal is docketed while the agency “undertakes further rulemaking to determine what the salary level should be.”

But there’s a problem: It’s not clear from Judge Mazzant’s ruling whether the agency has the authority to use salary as a basis for defining the EAP exemption in the first place — leading experts to speculate that affirming that authority is the primary reason behind the DOL’s appeal.

“It’s not the normal [type of case] you see. It has some different twists and turns to it,” said David C. Burton, a partner at Williams Mullen. “The DOL wants to get [its new] rule out without this litigation putting them in the position of having to argue whether or not they have the authority to issue it.”

Christine Owens, executive director of the National Employment Law Project, a workers’ rights group that has remained steadfast in its support of the 2016 rule, said in a statement that the DOL’s appeal “is good news for the millions of workers who need better protections of their right to overtime pay,” and that the agency “is right to defend its authority to issue a robust salary threshold to set the baseline for this exemption.”

The apparent uncertainty over the DOL’s ability to set a salary threshold for overtime exemption stems from Judge Mazzant’s November ruling issuing a preliminary injunction blocking the rule. The judge said then that nothing in the exemption indicates Congress wanted the DOL to define employee classifications with respect to a minimum salary level.

That decision raised enough of a question about the scope of the DOL’s authority regarding the EAP exemptions that the agency addressed it in a brief at the Fifth Circuit in June, after the Trump administration was in place. The agency said that while it “decided not to advocate for the specific salary level” set by the 2016 rule, it nonetheless had the power to use salary as a component for testing whether a worker should be paid overtime.

That appeal, which has since been withdrawn, was challenging Judge Mazzant’s preliminary injunction.

In his August ruling invalidating the 2016 rule outright, Judge Mazzant said the salary level set by the DOL was so high that it flouted Congress’ intention that the overtime exemption apply to employees who perform “bona fide executive, administrative or professional capacity” duties.

He said that by setting the salary level where it did, the DOL effectively eliminated the so-called duties test for determining which workers are eligible for the EAP exemption, which it lacked the authority to do.

Judge Mazzant, however, was careful to note that he wasn’t making any determination regarding the lawfulness of the salary level test or the DOL’s authority to issue one, saying instead that he evaluated only the salary-level test as proffered in the 2016 rule.

Attorneys speculated following that ruling that it still left plenty of room for interpretation as to whether the DOL has the ability going forward to use a salary test when dealing with the overtime exemption.

Steven Pockrass, co-chair of Ogletree Deakins Nash Smoak & Stewart PC’s wage and hour practice, told Law360 on Monday that the DOL is likely trying to “get [Judge Mazzant’s August decision] off the books so there is no longer any ruling that limits the DOL’s authority” still in effect.

“The goal is to get the district court’s decision vacated as if it was never on the books,” Pockrass said, noting that he expects the government to also argue after it issues a new rule that the appeal is moot.

But that approach could also backfire, attorneys say, since the Fifth Circuit may decide not to grant the DOL’s request for a stay.

Burton noted that by filing an appeal, the DOL could be opening the door for the Fifth Circuit to overturn Judge Mazzant’s ruling and uphold the Obama-era rule in full, which would create even greater procedural hurdles for the Trump DOL to justify any changes if it later decides to revisit the regulation and set a salary threshold it considers more appropriate.

In another procedural twist on Monday, the AFL-CIO also filed its own notice of appeal with Judge Mazzant, who had previously denied the union’s bid to intervene in the case.

Glovsky, for one, noted that the union may ultimately present an argument that coincides to some extent with the agency’s position that it has the power to set a salary level threshold.

But the union may go further and “try to get the Obama regulation to be upheld in its entirety” if it has the opportunity to present arguments to the Fifth Circuit, Glovsky said.

The cases are State of Nevada et al. v. U.S. Department of Labor, case number 4:16-cv-00731, and Plano Chamber of Commerce et al. v. R. Alexander Acosta, case number 4:16-cv-00732, in the U.S. District Court for the Eastern District of Texas.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

Justices won’t hear Robert Half class arbitration challenge

Published on October 30, 2017

New York — The U.S. Supreme Court refused to hear a case from former Robert Half International Inc. workers challenging a ruling by the Third Circuit that the staffing agency could address overtime claims in individual arbitration rather than on a classwide basis, according to its Monday order list.

The high court denied former staffing managers David Opalinski and James McCabe’s June petition for a writ of certiorari, which identified what they perceived as a circuit split on the issue of who determines the availability of class arbitration — a district court or an arbitrator. The Third Circuit had affirmed a New Jersey district court’s ruling that class arbitration was not permitted under their employment agreements, which Opalinski and McCabe claimed directly contradicted an arbitrator’s prior determination.

Justice Neil Gorsuch did not take part in the high court’s decision.

“Robert Half essentially got two bites at the apple by successfully moving to compel arbitration and then running back to court when it did not like the result it obtained in arbitration (despite not having previously challenged the court’s allowing the arbitrator to decide this issue),” they wrote in the petition. “This case presents a prime example of the gamesmanship in which parties can partake, exploiting the uncertainty of the ‘who decides’ issue to their advantage.”

Opalinski and McCabe had launched their lawsuit in New Jersey federal court against international staffing agencies Robert Half International Inc. and Robert Half Corp. in 2010, claiming that the companies misclassified them as overtime-exempt employees in violation of the Fair Labor Standards Act. Opalinski and McCabe sought to pursue individual claims as well as collective action claims on behalf of thousands of Robert Half staffing managers, according to court filings.

Robert Half, meanwhile, asserted that the employees had signed employment agreements containing arbitration clauses, trying to dismiss their claims and compel arbitration.

An arbitrator held in May 2012 that class arbitration was permitted under the employment agreements but the district court later disagreed, arguing that it was not permitted and dismissing the suit with prejudice. That decision was affirmed by the Third Circuit, which refused to grant Opalinski and McCabe a rehearing in March.

The workers petitioned the high court for a writ of certiorari in June, arguing that an arbitrator — not the district court — has the final say as to the availability of class arbitration. Their petition relies on the high court’s precedent in the 2013 case Oxford Health Plans LLC v. Sutter, in which it upheld a an arbitrator’s decision to permit class arbitration despite the fact that such an option was not mentioned in the class’ agreements but put off resolving the broader question of who has the power to determine class arbitration availability.

The workers identified in their petition a circuit split on the issue, arguing that while the Third Circuit ruled in their case that a district court must determine class arbitration availability, the Fifth Circuit has alternatively found that power lies instead with an arbitrator.

Robert Half countered before the high court that no such circuit split exists, quoting the Third Circuit’s opinion in saying that no other circuit courts have “ruled, or even expressed a view on the issue before us.” Rather, they claimed that the Third, Fourth, Sixth, Eighth and Ninth Circuits have ruled that “determining the availability of class arbitration presents a question of arbitrability that is presumptively for a court to decide,” their reply brief states.

The company also noted that the case involves older arbitration agreements that make no mention of class arbitration, but parties have since evolved to address class arbitration head-on in their employment agreements, meaning the “present issue is headed towards total extinction.”
Counsel for the parties did not immediately respond to requests for comment.

The workers are represented by Shannon Liss-Riordan of Lichten & Liss Riordan PC.

Robert Half is represented by Richard Alfred, Patrick J. Bannon and James M. Hlawek of Seyfarth Shaw LLP.

The case is David Opalinski, et al. v. Robert Half International, Inc., et al., case number 16-1456 in the Supreme Court of the United States.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

EEOC won $484 million for workers in 2017, cut backlog

Published on November 9, 2017

New York — The U.S. Equal Employment Opportunity Commission won nearly $500 million for workers in fiscal year 2017 and reduced its inventory of unresolved discrimination charges to its lowest level in a decade, the agency said Thursday, giving a sampling of data from a report due out next week.

The agency said it won $484 million in the last fiscal year. It also resolved 99,109 charges to bring its total charge workload down to 61,621 at the end of September, compared with resolving 97,443 charges to bring its workload down to 73,508 charges at the same time last year, it said.

EEOC acting chair Victoria Lipnic said in a statement Thursday the agency made “addressing the backlog a priority.”

“The pending inventory of private sector charges … has been a longstanding issue for the EEOC and the public it serves,” Lipnic said.

Lipnic added the agency reduced its backlog in part by sharing effective case resolution strategies among its offices “while ensuring we are capturing charges with merit.”

The $484 million total includes $355.6 million secured for private sector and state workers through mediation, conciliation and other administrative enforcement and another $42.4 million secured through litigation. The agency also won $86 million for federal employees and job applicants, it said.

The agency fielded 540,000 phone calls and more than 155,000 contacts with its field offices in fiscal year 2017, with 84,254 new charges filed. It did not break these charges down into types of discrimination alleged on Thursday.

It filed 184 lawsuits in fiscal year 2017, more than double the 86 suits it filed in the same period a year ago, according to a January release. Of those, 124 included individual claims, 30 alleged non-systemic discrimination against multiple individuals and 30 alleged systemic discrimination. The suits include allegations that workers at a California Chipotle locked a coworker in a freezer after he reported their boss for sexual harassment, and that Time Warner Cable violated the Americans with Disabilities Act by firing an account executive with cancer.

On the outreach front, the agency said its educational programs reached 317,000 people across more than 4,000 free events in fiscal year 2017.

The agency also revamped its online offerings, updating a youth-oriented area of its website, launching a resource center aimed at educating small business owners on their legal responsibilities, and rolling out a new online charge reporting system.

The EEOC announced in March that it would start taking initial inquiries and requests for intake interviews online in five cities. The agency rolled the program out nationwide earlier this month, with Lipnic saying at the time she hoped it would “make the EEOC much more accessible to the public.”

The agency said Thursday it will release additional data in its fiscal year 2017 Performance and Accountability Report, which will be available on its website on Nov. 15. The agency will release comprehensive statistics for fiscal year 2017 in January.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

Consolidated Edison Co. to pay $800,000 to settle EEOC disability discrimination suit

Published on November 8, 2017

NEW YORK – Consolidated Edison Company of New York, Inc., the utility that provides electrical and gas service to New York City and Westchester County, will pay $800,000 and furnish other relief to resolve a disability discrimination suit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

According to the EEOC’s complaint, the company’s doctors refused to medically approve qualified applicants to begin employment because of their disabilities, even though they

could perform the jobs for which they applied. The company also performed medical examinations of applicants without giving them a conditional job offer first. Finally, the company’s doctors imposed improper medical restrictions on some existing employees with disabilities that reduced their earnings, and in one case led to termination, the EEOC said.

The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination in hiring and terms and conditions of employment based on disability. This includes refusing to hire applicants because of their disabilities when they can perform the essential functions of the job with or without a reasonable accommodation. Additionally, an employer may not ask applicants disability-related questions and may not conduct medical examinations until after it makes a conditional job offer to the applicant. The EEOC filed suit in U.S. District Court for the Southern District of New York (EEOC v. Consolidated Edison Company of New York, Inc., Civil Action No.17-cv-7390), after first attempting to reach a pre-litigation settlement through its conciliation process.

Under the consent decree settling the suit, the company will pay the job applicants and employees who were discriminated against $800,000 in lost wages and damages. The decree also requires that Con Ed give a written job offer before it conducts any pre-hire medical examination. Under the decree, Con Ed must make an individualized assessment of each applicant’s ability to perform the job and will raise the threshold for its doctors to place disability-related restrictions on applicants and employees.

“The EEOC appreciates Con Ed’s willingness to resolve this case without protracted litigation,” said Jeffrey Burstein, the EEOC’s regional attorney for the New York District Office. “The agency remains committed to enforcing federal law to ensure that people with disabilities do not face discriminatory barriers to full and equal participation in the workforce.”

EEOC New York District Director Kevin Berry said, “Congress passed the ADA to protect Americans with disabilities from adverse employment actions based on fears and myths about their conditions. We applaud Con Ed’s willingness to change its hiring procedures to ensure that disabled applicants are given a fair and equal opportunity to work for them.”

The EEOC’s New York District Office is responsible for processing discrimination charges, administrative enforcement and the conduct of agency litigation in New York, northern New Jersey, Connecticut, Massachusetts, Rhode Island, Vermont, New Hampshire and Maine.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

EEOC issues 2017 performance report

Published on November 16, 2017 

WASHINGTON — The U.S. Equal Employment Opportunity Commission (EEOC) made significant progress in managing the pending inventory of charges during fiscal year 2017, which ended Sept. 30, the agency reported in its annual Performance and Accountability Report published on Nov. 15.

EEOC offices deployed new strategies to more efficiently prioritize charges with merit and more quickly resolve investigations once the agency had sufficient information. Together with improvements in the agency’s digital systems, these strategies produced an increase in charge resolutions and a significant decrease in charge inventory.  As a result, in fiscal year 2017 the EEOC resolved 99,109 charges and reduced the charge workload by 16.2 percent to 61,621, the lowest level of inventory in 10 years.  Additionally, during the fiscal year, the EEOC handled over 540,000 calls to the toll-free number and more than 155,000 contacts about possible charge filing in field offices, resulting in 84,254 charges being filed.

“The pending inventory of private sector charges (the backlog) has been a longstanding issue for the EEOC and the public it serves,” said EEOC Acting Chair Victoria A. Lipnic. “Early in the calendar year, we made addressing the backlog a priority. A primary point of this effort was to share strategies among our offices that have been particularly effective in dealing with the pending inventory, while ensuring we are capturing charges with merit. I thank EEOC’s employees for their work and congratulate them on this progress.”

Other fiscal year 2017 highlights include:

The EEOC secured approximately $484 million for victims of discrimination in the workplace. This includes $355.6 million in monetary relief for those who work in the private sector and state and local government workplaces through mediation, conciliation and other administrative enforcement, and $42.4 million in monetary relief for charging parties through litigation. The EEOC also secured $86 million in monetary relief for federal employees and applicants.  Importantly, in each of these categories, the agency obtained substantial changes to discriminatory practices to remedy violations of equal employment opportunity laws and prevent future discriminatory conduct.

In fiscal year 2017, the EEOC filed 184 merits lawsuits, including 124 suits on behalf of individuals, 30 non-systemic suits with multiple victims, and 30 systemic suits. This is more than double the number of suits filed in fiscal year 2016. Additionally, EEOC’s legal staff resolved 109 merits lawsuits for a total monetary recovery of $42.4 million and achieved a favorable result in 91 percent of all district court resolutions.  In addition, a number of very significant suits were successfully resolved.

The agency’s outreach programs reached 317,000 people during the year through participation in more than 4,000 no-cost educational, training and outreach events. The EEOC continued to promote the online Small Business Resource Center to provide a one-stop shop to help small businesses easily access information about employer responsibilities. The Small Business Administration Ombudsman’s Report again gave EEOC an “A” rating for responsiveness to small business concerns.

On the technology front, the agency further enhanced its online capabilities for the public and made internal operational improvements. For the public, the EEOC advanced its online services by way of a pilot program which allowed individuals in five EEOC offices to submit inquiries online, schedule interviews, and submit and receive charge information.  This pilot led to the nationwide launch of the EEOC Public Portalin November 2017. Internally, the agency replaced many paper procedures with more efficient online tools.

In our federal sector program, the agency resolved 6,661 hearings complaints and secured more than $72.7 million in relief for federal employees. EEOC also resolved 4,284 appeals of agency decisions on federal sector complaints, a 14 percent increase over the previous year, including 47.3 percent of them within 180 days of receipt, and secured more than $13.3 million in relief. Our federal program also reduced its pending inventory of appeals by 11 percent to 3,658 the lowest level in nine years.

EEOC’s fiscal year 2017 Performance and Accountability Report is posted on the agency’s web site at https://www.eeoc.gov/eeoc/plan/upload/2017par.pdf. Comprehensive enforcement and litigation statistics for fiscal year 2017 will be available on the agency’s website in January 2018.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

Sharp spike in EEOC lawsuits

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on October 5, 2017.


Byrona J. Maule is a Director and litigation attorney as well as Co-Chair of the Firm’s Labor & Employment practice group. She represents executives and companies in a wide range of business and litigation matters with a strong emphasis on employment matters.

By Phillips Murrah Director Byrona J. Maule

Fall is a time of change. But this fall, the transition from summer isn’t the only change we’re experiencing. This fall has also brought extraordinary action from the Equal Employment Opportunity Commission. Starting in July, the EEOC has filed a flurry of federal lawsuits against both private and public employers.

In July 2017, the EEOC filed 20 lawsuits, compared to eight in July 2016, according to EEOC.gov’s announcements. At first, I thought this was some type of anomaly, but it continued into August 2017 with another 20 lawsuits filed, compared to eight last August. In September, they filed a whopping 69 lawsuits, as opposed to 22 in September 2016. To date, the EEOC has filed 241 lawsuits in 2017, compared to 86 in all of 2016. With three months left in 2017, there is no reason to believe the rest of 2017 will trend any differently.

Other changes in the EEOC’s activity include an inclination to file suit against an employer in a single plaintiff case, as opposed to lawsuits in which the outcome would have a broad impact on society. The EEOC’s 2012-2016 Strategic Plan emphasized using litigation mechanisms to identify and attack discriminatory policies and other instances of systemic discrimination. This emphasis seems to have waned.

Considering the life cycle of an EEOC lawsuit from charge to the EEOC’s decision to file a lawsuit takes multiple years, this sharp spike in the number of merit lawsuits being filed does not indicate that workplace behavior has drastically changed in recent months. Rather, the change appears to be in the decision-making process of the EEOC when deciding if it is going to file a lawsuit and what types of lawsuits the EEOC pursues. In one recent case involving Home Depot, the EEOC filed charges despite the company’s position it had reached agreement with the EEOC on the major terms of a settlement.

What does it all mean? It is difficult to know at this point. The real significance for employers is there are significantly more lawsuits being brought by the EEOC in 2017 than at any time between 2012 and 2016. Employers need to be very aware of this, and approach EEOC charges with increased attention.

Byrona J. Maule is a partner and co-chair of the labor and employment practice group at Oklahoma City-based law firm Phillips Murrah.

Life University sued by EEOC for race discrimination, retaliation

Published on September 22, 2017

ATLANTA – Life University, Inc., the largest chiropractic college in the United States, located in Marietta, Ga., violated federal law when it treated two black employees differently because of their race and then fired them for complaining about the discrimination, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed recently.

According to the EEOC’s complaint, Life University’s director of the financial aid department violated federal law by subjecting Channon Williams and Shaundy Thomas, two African-American financial aid counselors, to harsher discipline because of their race. The same director failed to discipline Caucasian financial aid counselors for committing the same or similar supposed offenses. After Williams and Thomas took their complaints about racial discrimination to Life University’s human resources department, in or about December 2015, both were fired a short time later, in January 2016.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit (EEOC v. Life University Inc., Civil Action No. 1:17-cv-3121) in U.S. District Court for the Northern District of Georgia after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC is seeking back pay, compensatory and punitive damages for Williams and Thomas, as well as injunctive relief designed to prevent such discrimination in the future.

“An employer should not treat any employee differently simply because of their race,” said Bernice Williams-Kimbrough, director of the EEOC’s Atlanta District Office.

Antonette Sewell, regional attorney for the Atlanta District Office, added, “Employers should never terminate an employee for complaining about discrimination and exercising his or her federally protected rights. Instead, employers should strive to create a culture where discrimination is not tolerated and complaints are welcome.”

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

Ford Motor Co. to pay up to $10.125 million to settle EEOC harassment investigation

Published on September 22, 2017

CHICAGO – Ford Motor Company has agreed to pay up to $10.125 million to settle sex and race harassment for a group of individuals which was investigated by the U.S. Equal Employment Opportunity Commission (EEOC) at two Ford plants, the federal agency announced Aug. 17.

In its investigation, the EEOC found reasonable cause to believe that personnel at two Ford facilities in the Chicago area, the Chicago Assembly Plant and the Chicago Stamping Plant, had subjected female and African-American employees to sexual and racial harassment. The EEOC also found that the company retaliated against employees who complained about the harassment or discrimination.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. Ford chose to voluntarily resolve this issue with the EEOC, without admission of liability, to avoid an extended dispute.

The conciliation agreement provides monetary relief of up to $10.125 million to those who are found eligible through a claims process established by the agreement. The agreement also ensures that during the next five years, Ford will conduct regular training at two of its Chicago-area facilities; continue to disseminate its anti-harassment and anti-discrimination policies and procedures to emp­loyees and new hires; report to EEOC regarding complaints of harassment and/or related discrimination; and monitor its workforce regarding issues of alleged sexual or racial harassment and related discrim­ination.

“Ford Motor Company has worked with the EEOC to address complaints of harassment and discrimination at these two facilities and to implement policies and procedures that will effectively prevent future harassment or provide prompt action when harassment complaints arise.  Ford has taken its responsibilities seriously and is committed to providing its employees with a work environment free of discrimination and harassment,” said the EEOC’s Chicago District Director, Julianne Bowman.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

Lincoln Cemetery sued by EEOC for retaliation

Published on September 22, 2017

ATLANTA – Lincoln Cemetery, Inc., an Atlanta corporation specializing in interment arrangements, violated federal law when it fired an employee because she participated in an EEOC investigation, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it recently filed.

According to the EEOC’s lawsuit, Peggy Knox had worked for Lincoln Cemetery as an adminis-trative assistant since October 1983. In July 2015, Knox was interviewed by the EEOC during its investi-gation into an EEOC charge filed against Lincoln Cemetery by another employee. On Sept. 17, 2015, Lincoln Cemetery’s owner and president attended a conference at the EEOC’s Atlanta District Office related to the same EEOC investigation. Within hours of attending the conference, Knox was fired be-cause of her cooperation with the EEOC.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit in U.S. District Court for the Northern District of Georgia, Atlanta Division (Civil Action No. 1:17-cv-3165-ELR-AJB) after first attempting to reach a pre-litigation settlement through its conciliation process. The federal agency seeks back pay, compensatory damages and punitive damages for Knox, as well as injunctive relief designed to prevent such discrimination in the future.

“This suit sends a message that employees should never be punished for speaking to government officials when they investigate discrimination claims,” said Bernice Williams-Kimbrough, director of the EEOC’s Atlanta District Office.

Antonette Sewell, regional attorney for the Atlanta District Office, added, “Trying to take revenge against employees for speaking to government investigators and engaging in protected activity is a clear violation of the anti-retaliation provisions of Title VII and hinders an employee’s ability to work in a discrimination-free environment as well as the government’s ability to do its job.”

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

EEOC sues Illinois Action for Children for disability discrimination

Published on September 22, 2017

CHICAGO – Illinois Action for Children fired an employee who was on leave receiving treatment for breast cancer rather than granting her request for additional leave for more treatment, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed Aug. 28.

Such alleged conduct violates under the Americans with Disabilities Act (ADA), which prohibits disability discrimination in employment. The EEOC brought the suit (EEOC v. Illinois Action for Children, Civil Action No. 17-cv-6224) in U.S. District Court for the Northern District of Illinois, Eastern Division on Aug. 28, after first attempting to reach a pre-litigation settlement through its conciliation process. The case has been assigned to U.S. District Judge Rebecca R. Pallmeyer.

EEOC Chicago District Director Julianne Bowman said, “Our investigation revealed that Illinois Action for Children fired Myrnie Brown while she was receiving treatments for breast cancer rather than granting her request from her doctor for a short period of additional leave to receive additional treatment. Ms. Brown had been employed with Illinois Action for Children for almost two and half years at the time of her termination. Although Illinois Action for Children eventually rehired Ms. Brown, because of her termination over breast cancer leave, she was denied the opportunity to work at her job for over six months.”

EEOC Chicago District Regional Attorney Greg Gochanour pointed out that employers have a duty to provide reasonable accommodations to people with disabilities that enable them to perform the essential functions of their job. Courts have repeatedly found that in certain circumstances, a leave of absence may constitute a reasonable accommodation under the ADA. EEOC guidance states than an employer may have to accommodate an employee who is unable to work while she is undergoing chemotherapy or other treatments, Gochanour added.

Gochanour said, “Anyone suffering from breast cancer has enough to face and overcome without her employer violating federal law and denying her adequate leave to combat her illness.  When such a situation sadly occurs, the EEOC is ready to step in and fight for people who are fighting discrimination as well as cancer.”

The EEOC is seeking full make-whole relief, including back pay, compensatory and punitive damages, and non-monetary measures to correct Illinois Action for Children’s practices going forward.

The EEOC’s Chicago District Office is responsible for processing charges of employment discrimination, administrative enforcement, and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

EEOC sues Maritime Autowash for race and national origin discrimination, retaliation

Published on September 22, 2017

BALTIMORE – Maritime Autowash, Inc. violated federal law when it subjected a class of workers to a hostile work environment and disparate treatment based on their race and national origin (Hispanic) at its Edgewater, Md., facilities, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced Aug. 28.

According to the EEOC’s lawsuit, Maritime segregated a class of Hispanic workers into lower-paying jobs as laborers or detailers because of their race and national origin, and did not offer them promotion or advancement opportunities to key employee or cashier positions, despite their tenure and outstanding job performance. Maritime paid many class members only the minimum wage despite years of service, but paid non-Hispanic workers higher wages or promoted them to key employee positions.

The EEOC also charged that Maritime discriminated against the Hispanic class members in their terms and conditions of employment. These discriminatory practices included forcing them to perform other duties without additional compensation and denying them proper safety equipment or clothing. Maritime also required Hispanic workers to perform personal tasks for the owner and managers, such as routinely assigning the female Hispanic class members to clean the houses of the owner or manager and assigning the male Hispanics to perform duties at their homes, such as landscaping, cleaning the pool, picking up dog excrement, painting or helping with moves.

In addition, the EEOC charged that Maritime further violated the law by firing class members for complaining about the harassment and discriminatory working conditions.  In the course of the EEOC’s investigation of this matter, the U.S. Circuit Court of Appeals for the Fourth Circuit enforced the agency’s authority to subpoena evidence, in a published opinion available at:  http://www.ca4.uscourts.gov/Opinions/Published/151947.P.pdf.

All this alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits discrimination and harassment based on race and national origin. The EEOC filed suit (EEOC v. Phase II Investments, Inc., formerly known as Maritime Autowash, Inc. and Maritime Autowash, II, et. al, Civil Action No. 1:17-cv-02463) in U.S. District Court for the District of Maryland, Northern Division, after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC is seeking compensatory and punitive damages on behalf of the class members, as well as broad injunctive relief to prevent discrimination in the future.

“Sadly, more than 50 years after the passage of the Civil Rights Act, this employer thought it could get away with subjecting Hispanic workers to separate and unequal pay, job opportunities and working conditions,” said EEOC Regional Attorney Debra M. Lawrence. “The EEOC is dedicated to protecting vulnerable workers from such discrimination and harassment and ensuring that all employees receive equal pay for equal work.”

Spencer H. Lewis, Jr., district director of the EEOC’s Philadelphia District Office, added, “Exploiting workers based on national origin and race is despicable and unlawful. The class members courageously opposed the harassment and discrimination. Unfortunately, Maritime again failed to do the right thing and made a bad situation worse by firing the discrimination victims. Now the EEOC will take vigorous action to rectify this situation.”

The EEOC’s Baltimore Field Office is one of four offices in the Philadelphia District Office, which has jurisdiction over Pennsylvania, Maryland, Delaware, West Virginia and parts of New Jersey and Ohio. Attorneys in the Philadelphia District Office also prosecute discrimination cases in Washington, D.C. and parts of Virginia.

Eliminating discriminatory practices affecting vulnerable workers who may be unaware of their rights under equal employment laws or reluctant or unable to exercise them, is one of six national priorities identified by the Commission’s Strategic Enforcement Plan (SEP). These practices can include disparate pay, job segregation, harassment and human trafficking. Enforcing equal pay laws, including addressing discriminatory compensation systems and practices, is another SEP priority.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

EEOC sues Estee Lauder for sex discrimination

Published on September 22, 2017

PHILADELPHIA—Estee Lauder Companies, Inc., one of the world’s leading manufacturers and marketers of skin care, makeup, fragrance and hair care products, violated federal law when it implemented and administered a paid parental leave program that automatically provides male employees who are new fathers lesser parental leave benefits than are provided to female employees who are new mothers, the Equal Employment Opportunity Commission (EEOC) alleged in a lawsuit it announced Aug. 30.

According to the suit, in 2013 Estee Lauder adopted a new parental leave program to provide employees with paid leave for purposes of bonding with a new child, as well as flexible return-to-work benefits when the child bonding leave expired. Under its parental leave program, in addition to paid leave already provided to new mothers to recover from childbirth, Estee Lauder also provides eligible new mothers an additional six weeks of paid parental leave for child bonding.  Estee Lauder only offers new fathers whose partners have given birth two weeks of paid leave for child bonding.  The suit also alleges that new mothers are provided with flexible return-to-work benefits upon expiration of child bonding leave that are not similarly provided to new fathers.

The case arose when a male employee working as a stock person in an Estee Lauder store in Maryland sought parental leave benefits after his child was born.  He requested, and was denied, the six weeks of child-bonding leave that biological mothers automatically receive, and was allowed only two weeks of leave to bond with his newborn child.  Such conduct violates Title VII of the Civil Rights Act of 1964 (Title VII) and the Equal Pay Act of 1963, which prohibit discrimination in pay or benefits based on sex.  The suit seeks relief for the affected employee, and other male employees who were denied equal parental leave benefits because of their sex.

The EEOC’s Washington Field Office investigated the charge of discrimination that led to this suit. The EEOC filed suit (EEOC v. Estee Lauder Companies, Inc., Civil Action No. —) in U.S. District Court for the Eastern District of Pennsylvania after first attempting to reach a pre-litigation settlement through its conciliation process. As part of the suit, the EEOC is seeking back pay and compensatory and punitive damages on behalf of the aggrieved class members, as well as injunctive relief.

“It is wonderful when employers provide paid parental leave and flexible work arrangements, but federal law requires equal pay, including benefits, for equal work, and that applies to men as well as women,” said EEOC Washington Field Office Acting Director Mindy Weinstein.

EEOC Philadelphia District Office Regional Attorney Debra M. Lawrence added, “Addressing sex-based pay discrimination, including in benefits such as paid leave, is a priority issue for the Commission.”

Enforcement of equal pay laws, including targeting compensation systems and practices that discriminate based on gender, is of one of six national priorities identified by the Commission’s Strategic Enforcement Plan.

The EEOC Philadelphia District Office has jurisdiction over Pennsylvania, Maryland, Delaware, West Virginia and parts of New Jersey and Ohio.  Attorneys in the EEOC Philadelphia District Office also prosecute discrimination cases arising from Washington, D.C. and parts of Virginia.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

EEOC sues Pizza Studio restaurant owner for violating Equal Pay Act

Published on September 22, 2017

ST. LOUIS – A Delaware company that until recently operated a Pizza Studio restaurant in Kansas City, Kan., and still owns other restaurants nationwide, violated federal law by withdrawing job offers from two teens after the woman complained about being offered less pay than her male friend, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed Sept. 5.

According to the EEOC’s lawsuit, two high school friends, Jenson Walcott and Jake Reed, applied to work at Pizza Studio as “pizza artists” in 2016. After both were interviewed and offered jobs, Walcott and Reed discussed their starting wages. Upon learning that Reed was offered 25¢ more per hour, Walcott called the restaurant to complain about the unequal pay. When she did so, the company immediately withdrew its offers of employment from both Walcott and Reed.

Such alleged conduct violates the Equal Pay Act of 1963, which prohibits companies from paying women and men unequally and retaliating against those who complain about or support a claim of unequal pay.

The EEOC filed its lawsuit (Equal Employment Opportunity Commission v. PS Holding LLC (Pizza Studio), Civil Action No. 2:17-cv-02513 in U.S. District Court for the District of Kansas. The EEOC seeks monetary relief as well as a judgment and order requiring the company to implement policies and practices to prevent future discrimination.

“The federal law requiring equal pay for jobs requiring the same skill, effort, and responsibility is older than the law which protects employees from discrimination based on race, religion, color, sex, and national origin,” said James R. Neely, Jr., director of EEOC’s St. Louis District Office. “Women must absolutely be paid the same as men for equal work.”

Andrea G. Baran, the EEOC’s regional attorney in St. Louis, said, “Perhaps even worse than offering unequal pay is firing employees when they make a good-faith inquiry regarding the possibility of unfair compensation. Employees need to know that the law protects co-workers who talk about their pay and those who complain if they believe the employer is not paying men and woman equally.”

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. The St. Louis District Office oversees Missouri, Kansas, Nebraska, Oklahoma, and a portion of southern Illinois.

The EEOC’s Youth@Work website (at http://www.eeoc.gov/youth/) presents information for teens and other young workers about employment discrimination, including curriculum guides for students and teachers and videos to help young workers learn about their rights and responsibilities.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

Denton County sued by EEOC for discrimination under the Equal Pay Act

Published on September 22, 2017

DALLAS – Denton County, Texas violated the Equal Pay Act by paying lesser wages to a female clinician than it paid to a male physician performing the same job, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed Sept. 6.

According to the EEOC’s lawsuit, Dr. Martha C. Storrie worked as primary care clinician in the Denton County Health Department beginning in October 2008. The job duties of the primary care clinician were primarily to provide medical treatment and healthcare for Denton County residents in clinics run by the county, including a clinic in the Denton County jail. According to the EEOC, in August 2015, Denton County hired a male physician to perform the same duties and responsibilities as other staff working as a primary care clinician.

However, when the newly hired clinician was brought onboard as a colleague of Dr. Storrie’s, the county set his starting annual salary at more than $34,000 higher than his experienced female counterpart. The EEOC maintains that during her employment with Denton County, other male physi­cians in the position of primary care clinician and performing the same duties were also paid higher wages than Dr. Storrie.

Such alleged conduct violates the Equal Pay Act (EPA), which prohibits discrimination in compensation based on sex. The EEOC filed suit in U.S. District Court for the Eastern District of Texas, Sherman Division (Equal Employment Opportunity Commission v. Denton County, Civil Action No. 4:17-CV-00614-ALM after first attempting to reach a pre-litigation settlement through its concilia­tion process. The agency seeks back pay to remedy the pay disparity.

The EEOC is also seeking liquidated (double) damages for alleged willfulness on the part of the county, when management refused to correct the matter even after the female physician brought it to their attention. The civil rights agency is also asking for injunctive relief to promote non-discriminatory pay practices in the future.

“Energetically enforcing equal pay laws is a currently one the national strategic priorities for the EEOC,” said EEOC Regional Attorney Robert A. Canino. “In the health care field, just as in any other job market, the best medicine for employers ailing from poor pay practices is to remedy gender-based pay disparities that have been premised on outdated sex stereotypes. With over 1,000 EPA charges received in 2016, we have our work cut out for us in promoting equal economic opportunity in the workplace.”

EEOC Supervisory Trial Attorney Suzanne Anderson added, “Denton County failed to properly pay Dr. Storrie for her important work in providing medical care in the county clinics and the jail. The county’s approach to salaries resulted in a wage gap between Dr. Storrie and the male physicians that persisted throughout her long career with the county. The EEOC will continue to enforce compli­ance with the EPA to ensure that employees are paid equally when they perform equal work.”

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

EEOC sues Blood Bank of Hawaii for disability discrimination

Published on September 22, 2017

HONOLULU, Hawaii – Blood Bank of Hawaii violated federal law when it refused to provide reasonable accommodations for and then fired employees who required additional leave time for their disabilities, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed Sept. 7.

The EEOC contends that Blood Bank of Hawaii maintained a rigid maximum leave policy whereby employees with disabilities were not granted a leave of absence as a reasonable accommodation beyond the required 12 weeks under the Family and Medical Leave Act, and were required to return to work without limitations at the end of that leave. The EEOC further contends that as a result of its leave policy and requirement to return to work without limitations, Blood Bank of Hawaii terminated employees who exhausted leave or failed to return to work without restrictions.

Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed its suit in U.S. District Court for the District of Hawaii (EEOC v. Blood Bank of Hawaii, Case No. 1:17-cv-00444) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC’s suit seeks back pay and benefits, along with compensatory and punitive damages for the employee and a class of aggrieved individuals, as well as injunctive relief intended to prevent any future discrimination in the workplace.

“Employers have a duty to engage in the interactive process and provide reasonable accom-modations to employees with disabilities,” said Anna Park, regional attorney for the EEOC’s Los Angeles District, which includes Hawaii in its jurisdiction. “Employees should never be terminated or forced to resign simply because they need additional leave for their disabilities.”

Glory Gervacio Saure, director of the EEOC’s Honolulu Local Office, added, “We hope this case sends a clear message to employers that they have different obligations under the Family Medical Leave Act and the Americans with Disabilities Act. Employees cannot be denied their protections under the ADA.”

Addressing disability discrimination in the form of inflexible leave policies that discriminate against individuals with disabilities is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP).

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

EEOC sues Tarr and Zenith for pregnancy discrimination

Published on September 22, 2017

SAN DIEGO — Tarr, Inc. and Zenith, LLC, a San Diego-based company that sells dietary supplements, violated federal law when it fired an employee within days of learning of her pregnancy, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a pregnancy discrimination lawsuit filed Sept. 7.

According to EEOC’s lawsuit, an employee who worked at Tarr, Inc. in San Diego informed the company of her pregnancy and was terminated ten days later. The EEOC also contends that the com­pany discharged other pregnant employees or refused their requests to return to work after taking maternity leave. Tarr, Inc. merged with Zenith, LLC in 2016.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. The EEOC filed suit in U.S. District Court for the Southern District of California (EEOC v. Tarr, Inc., and Zenith, LLC, Case No. 3:17-cv-01660-W-WVG) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC’s suit seeks back pay, compensa­tory and punitive damages for the female employee and a class of similarly affected employees, as well as injunctive relief intended to prevent further discrimination at the business.

“Pregnancy discrimination continues to be a persistent problem,” said Anna Park, regional attorney for the EEOC’s Los Angeles District, whose jurisdiction includes San Diego County. “Employers should be cognizant of their obligations under federal law to maintain a workplace free of discrim­ination.”

Christopher Green, director of the EEOC’s San Diego local office, added, “Women should not have to choose between their job or having children. Employers need to be aware that the EEOC takes pregnancy discrimination seriously and the agency will continue to protect the rights of pregnant employees.”

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

JL Schwieters Construction to pay $125,000 to settle EEOC race harassment lawsuit

Published on September 22, 2017

MINNEAPOLIS – A Hugo, Minn., construction company will pay $125,000 to settle a racial harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Sept. 8. The EEOC’s lawsuit charged that JL Schwieters Construction, Inc. violated federal law when it subjected two black employees to a hostile work environment, including physical threats, based on their race.

According to the EEOC’s lawsuit, Willie Staple and Dion Pye worked for JL Schwieters Construction, Inc. from September 2012 to December 2013 as carpenters. Staple and Pye were both subjected to racial harassment during their employment by a white supervisor, which included racially derogatory comments including calling them “n—-r.” The supervisor also made a noose out of electrical wire and threatened to hang Staple and Pye, the EEOC charged.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which protects employees from discrimination and harassment based on race. The EEOC filed suit in U.S. District Court for the District of Minnesota (Equal Employment Opportunity Commission v. JL Schwieters Construction, Inc.; Civil Action No. 16-cv-03823 WMW/FLN) after first attempting to reach a pre-litigation settlement through its conciliation process.

U.S. District Judge Wilhelmina M. Wright signed the Order entering the Consent Decree on Sept. 6.  The decree provides $125,000 in monetary relief to Staple and Pye. It also requires Schwieters to revise its policies in its employee handbook to outline a complaint procedure for complaining of racial harassment. The decree also requires the company to train its management personnel on Title VII including its prohibitions against race discrimination and racial harassment.

Further, the decree requires Schwieters to train its non-management employees on their rights under Title VII, including their right to file discrimination charges with the EEOC. Finally, the company must report complaints of race discrimination and racial harassment to the EEOC during the decree’s two-year term.

“Employees have a right to work in an environment free of racial harassment, particularly the kind of severe and outrageous abuse the EEOC uncovered in its investigation of this case,” said Julianne Bowman, district director of the EEOC’s Chicago District.

Gregory Gochanour, regional attorney for the EEOC’s Chicago District, said, “Nooses and threats are absolutely unacceptable in 21st-century America.  When such terrible treatment is meted out to workers simply because of their race, the EEOC will fulfill its mandate and take action to stop it.”

The EEOC was represented in the case by Trial Attorney Tina Burnside in the EEOC’s Minneapolis Area Office.

The EEOC’s Chicago District Office is responsible for processing charges of discrimination, administrative enforcement and litigation in Minnesota, North Dakota, South Dakota, Wisconsin, Illinois and Iowa, with Area Offices in Milwaukee and Minneapolis.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

EEOC sues Golden Corral for disability, sexual harassment

Published on September 22, 2017

Jax, LLC, which operates a Golden Corral restaurant in Matthews, N.C., discriminated against an employee with a disability when it subjected him to a hostile work environment based on both his disability and his sex (male), the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed on Sept. 8. The lawsuit also alleges that the employee resigned because of the harassment.

According to the EEOC’s complaint, Sean Fernandez worked as a dishwasher at the Matthews Golden Corral. Fernandez has high-functioning autism, which limits his ability to communicate and interact with others. From around March or April 2014 until January 2016, a male assistant manager created a hostile work environment by repeatedly referring to Fernandez as a “retard,” calling him “stupid,” using profanity, requesting oral sex, threatening to sexually assault him, and subjecting him to unwanted physical contact. Fernandez filed a complaint and requested to be moved to a different shift, so that he would not have to work with the male assistant manager.  Fernandez resigned due to the harassment after he was again assigned to work with the same male assistant manager who again sexually harassed him.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which protects employees from discrimination based on their disabilities, as well as Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment. The EEOC filed suit in U.S. District Court for the Western District of North Carolina, Charlotte Division (EEOC v. Jax, LLC d/b/a Golden Corral, Civil Action No. 3:17-cv-00535-RJC-DCK) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC seeks back pay and compensatory and punitive damages as well as injunctive relief.

“All employees, men and women alike, are entitled to a workplace free from sexual harassment,” said Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District. “Likewise, all employees have the right to work without being harassed due to their disabilities. It is particularly alarming when harassment is perpetrated by a supervisor.”

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

Massimo Zanetti sued by EEOC for sexual harassment, retaliation

Published on September 22, 2017

ORFOLK, Va. —Massimo Zanetti Beverage USA, Inc. violated federal civil rights law when it failed to stop sexual harassment of a female employee and then fired her because she complained about the harassment, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed on Sept. 19.

According to the EEOC’s complaint, LaToya Young had been employed at Massimo Zanetti’s roasting facility in Suffolk, Va., about two weeks when a male co-worker began sexually harassing her in February 2015. The harassment included requests for sex and sexual favors, as well as other crude sexual comments and gestures. According to the EEOC, Young reported the harassment to her supervisor on at least three occasions. Despite her complaints, the harassment continued. Shortly after her third complaint about the sexual harassment, Young was fired for an alleged performance issue. The EEOC contends that Young’s performance was not the reason for her discharge, but rather was in retaliation for her complaints about sexual harassment.

The EEOC brought the suit under Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment and retaliation against employees who complain about it. The EEOC sued after first attempting to reach a pre-litigation settlement through its conciliation process. The case (EEOC v. Massimo Zanetti Beverage USA, Inc., Civil Action No. 2:17-CV-00499-HCM-DEM) was filed in U.S. District Court for the Eastern District of Virginia, Norfolk Division on September 18, 2017.

The EEOC is seeking full relief, including back pay, reinstatement, compensatory damages, punitive damages and injunctive relief.

“Employers must remember they are obligated to take prompt remedial action when they learn about sexual harassment in the workplace,” said Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District Office. “This case is also a reminder that a company must not retaliate after receiving a sexual harassment complaint.”

According to publicly available information, Massimo Zanetti, which is headquartered in Portsmouth, Va., is part of the Massimo Zanetti Beverage Group, which does over $1 billion of business annually and claims to be the largest private company in the coffee industry.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.

For more information on the EEOC, click here.

Disclaimer: This website post is intended for informational purposes only and does not constitute legal advice. Readers should not rely upon this information as a substitute for personal legal advice. If you have a legal concern, you should seek legal advice from an attorney.

Phillips Murrah Attorneys talk tech at the Firm’s AM@PM Breakfast Forum

From left: Phillips Murrah Attorneys Fred A. Leibrock, Cody J. Cooper, Kathryn D. Terry and Byrona J. Maule

On Tuesday, Aug. 22, Phillips Murrah hosted a technology-related panel discussion called “Real Risks in the Virtual World,” as a part of their AM@PM Breakfast Forum series.

  • The panel was moderated by Director Juston R. Givens.
  • Director and Phillips Murrah CIO Fred A. Leibrock discussed data security and breach avoidance practices.
  • Director Kathryn D. Terry offered real-world, rapid-response lessons from having represented a client that fell victim to a large-scale phishing scam.
  • Patent Attorney Cody J. Cooper discussed data mapping and preservation considerations related to litigation holds.
  • Director Byrona J. Maule outlined risks and benefits for employers related to “bring your own device” policies.

The well-attended panel discussion event was held at Vast on the 50th floor of the Devon Tower.

For more information about AM@PM Breakfast Forum, go to phillipsmurrah.com/AM-at-PM.

 

 

The Wrong Claim – Defining boundaries to Burk tort actions

Complaints of wrongful termination by employees have been heard in courtrooms across the nation for as long as there has been a legal venue in which to bring and defend such claims. It can be argued that the nature of the employer-employee relationship has been evolving ever since.

In Oklahoma, the employer-employee relationship is characterized by the employment-at-will doctrine. This means that either the employer or employee may end the employment relationship at any time for any reason, barring some exceptions. Exceptions for the employer include retaliatory termination, basing the decision to terminate on the employee’s race, gender, religion, national origin and other prior-identified protected classes, and whether the employee is hired under the conditions of a specific contractual agreement that lays out conditions for termination.

In the above exceptions, there are adequate remedies available through various employment and anti-discrimination laws. However, over time, there has been an evolution of claims that exist outside of this framework, where there existed no adequate legal remedies.

In 1989, the Oklahoma Supreme Court began chipping away at the employment-at-will doctrine in a landmark case known as Burk v. Kmart Corp. The Court recognized a new actionable tort claim that established an exception to the at-will termination rule in a narrow class of cases, which was subsequently referred to as a Burk tort.

“An at-will employee may have an actionable tort claim if his discharge is ‘contrary to a clear mandate of public policy as articulated by constitutional, statutory or decisional law,’” the Court held.

Burk or not Burk?

Outside of law firm offices, legislative chambers and courtrooms, the term “Burk tort” is not very remarkable. Yet, for decades, the questions of which entities can be sued for which alleged employment violations, and which legal remedies are appropriate for the matters at hand, have been and continue to be vigorously argued.

In a recent case brought before the U.S. District Court for the Western District of Oklahoma, Phillips Murrah Director Byrona J. Maule, arguing for the Defense, was granted dismissal of a wrongful termination claim brought under the Burk tort framework. This particular, seemingly obscure motion to dismiss is important because, had it not been successful, the claim could have altered current Oklahoma employment law by expanding the Burk tort into a new area.

In this recent case, the Plaintiff asserted that the Oklahoma Occupational Safety & Health Standards Act (OOSHSA) established a clear mandate of public policy that was allegedly violated by his employer, a privately owned company in Oklahoma City. However, as pointed out by Maule, in 1984, the Oklahoma legislature specifically removed private employers from the purview of OOSHSA, effectively limiting its public policy statement to only apply to public employers. Therefore, because the OOSHSA Act does not articulate a public policy with regard to a private employer, it could not support a Burk tort claim. The Court further found the federal OSHA statutes did not establish an Oklahoma public policy, and therefore did not articulate a public policy on which a Burk tort claim could be founded.

The Order handed down by the U.S. District Court for the Western District of Oklahoma quoted Griffin v. Mullinix, 1997 OK 120:

“See Griffin, at 179 (“[I]n 1984, the state legislature fundamentally changed the existing Occupational Safety & Health Standards Act, removing private employers from the definition under the Act … [T]he legislature’s decision to limit application of the Act to public employers limited the entire Occupational Safety & Health Standards Act, including the public policy statement. Therefore, [w]e find that an Act, which at one time applied broadly to all employers and now applies to public employers only, is not an adequate basis upon which to premise the private tort action of a private employee.”).

The Defendant’s Motion to Dismiss was granted, and a subsequent Plaintiff’s Motion to Amend Complaint was denied, based on the Plaintiff’s failure to state a claim against the Defendant upon which relief can be granted. Since the Defendant is a privately-owned company, OOSHA did not articulate a public policy that supported a Burk tort claim.

By Dave Rhea, Director of Marketing at Phillips Murrah

Department of Labor files overtime exemption brief with Fifth Circuit

In a brief filed with the Fifth Circuit of the Federal Court of Appeals, USDOL seeks to preserve salary level in determining overtime exemption status.

 

On Friday, June 30, the United States Department of Labor filed a brief with the Fifth U.S. Circuit Court of Appeals in New Orleans seeking to preserve a minimum salary requirement as a part of a three-part test to determine which workers are exempt from Fair Labor Standards Act (FLSA) minimum wage and overtime pay protections.

The three-part test, referred to as EAP, (executive, administrative, professional) relates to whether a worker is:

  1. Paid on a salary basis
  2. Earns a specified salary level
  3. Satisfies a duties test

The brief filed Friday concerns the second part.

The brief was filed in the case of Nevada v. DOL , 5th Cir., No. 16-41606 by the State of Oklahoma and 20 other states questioning whether the DOL under President Obama had the authority to set the annual salary threshold at $47,476, just over double the amount previously set in 2004 by the Bush Administration.

The Trump Administration brief asks the court to uphold DOL’s legal authority to set the salary threshold, but does not address the appropriate salary level, stating that the court should “simply lift the cloud” created by litigation questioning the Department’s authority to establish any salary level test.

“Instead, the department soon will publish a request for information seeking public input on several questions that will aid in the development of a proposal,” the agency stated it its brief.

To view the brief, click this link.

 


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USDOL Reinstates Wage & Hour Opinion Letters

The U.S. Department of Labor announced today that they will reinstate the issuance of opinion letters, which had been replaced in 2010 by issuance of USDOL general guidance. This action allows the USDOL’s Wage and Hour Division to use opinion letters as one of its methods for providing guidance to covered employers and employees.

Opinion letters are official opinions written by the Wage and Hour Division (WHD) of how to apply rules related to the Fair Labor Standards Act and other statutes in specific circumstances presented by an employer, employee or other entity seeking clarity. Opinion letters had been the general practice for seeking clarity since the Fair Labor Standards Act’s inception in 1938.

“By using the opinion letters, laws can be interpreted differently without the need of going through the administrative process,” explains Byrona J. Maule, Phillips Murrah Director and Co-Chair of the Firm’s Labor and Employment Practice Group.

This comes on the heels of the action taken by USDOL earlier this month, which withdrew two Obama-era guidance letters that sought to clarify worker classifications regarding independent contractors and joint employment.

U.S. Secretary of Labor Alexander Acosta in today’s release:

“Reinstating opinion letters will benefit employees and employers as they provide a means by which both can develop a clearer understanding of the Fair Labor Standards Act and other statutes. The U.S. Department of Labor is committed to helping employers and employees clearly understand their labor responsibilities so employers can concentrate on doing what they do best: growing their businesses and creating jobs.”

USDOL also announced a website portal whereby those seeking clarity can search for existing guidance or submit a request for an opinion letter. Today’s release explained: “The webpage explains what to include in the request, where to submit the request, and where to review existing guidance. The division will exercise discretion in determining which requests for opinion letters will be responded to, and the appropriate form of guidance to be issued.”

Employers should be vigilant in reviewing the opinion letters issued by the USDOL for trends and reversals of prior legal positions.

Visit this link to view currently published opinion letters: Wage and Hour Division (WHD) Opinion Letters – Fair Labor Standards Act

 


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Oklahoma Department of Labor offers free, confidential safety consultations

Are you concerned about your company’s OSHA compliance? Do you have concerns for the safety of your employees?

Safety consultants can be expensive, and during a time of tight financial resources, safety can take a back seat to other company priorities. However, in Oklahoma we have a cost-free option – the ODOL Safety Consultation program offered by the Oklahoma Department of Labor.

The goal of these inspections is compliance, not to levy fines. The ODOL will assess safety, evaluate the work site, and assist with training and compliance with the OSHA. Most importantly, if a concern is identified by the ODOL safety inspector, he or she will provide your company with suggestions about how to how to improve safety and obtain compliance with OSHA.

The company must agree to correct all hazards identified as serious within the established time frame. The consultations are not reported to OSHA. However, if an OSHA inspection should occur, there are requirements about company reporting regarding certain types of testing performed by the ODOL safety inspector.

Every company that is concerned with employee safety should consider these free, confidential, safety inspections. Identifying and correcting a problem can prevent workplace injuries and accidents, and can save the company penalties and fines in the future.

Learn more about these safety consultations by viewing the Oklahoma Department of Labor’s informational video: Workplace Safety Pays in Oklahoma

Disclaimer: Consultations are not a replacement for legal advice. If you have questions or need legal assistance for safety issues, please contact the law firm of Phillips Murrah at (405) 235-4100.

 

Phillips Murrah supports Big Brothers Big Sisters in 2017 campaigns

The beginning of Spring marks the beginning of Phillips Murrah’s sponsorship campaign for Big Brother Big Sister of Oklahoma’s Bowl for Kids’ Sake event.

The Firm kicked off its annual campaign with a Thunder ticket raffle, garnering $1,600 in donations, as the organization’s Taste of OKC event concluded Feb. 4.

Phillips Murrah served as a table sponsor for Taste of OKC, one of the marquee fundraising events for BBBSOK, at the Chevy Bricktown Events Center. The night was filled with great food from top restaurants in Oklahoma, a silent and a live auction, and then capped off with dancing to the music of My So Called Band.

Over 550 guests attended the event, which exceeded the goals and expectations the organization set, said Byrona J. Maule, Phillips Murrah Director and Member of the Board of Directors for BBBSOK.

“Every year the Taste of OKC gets better and better – in fact, the last two years the event has sold out,” she said. “Between being a table sponsor and auctioning items that guests of Phillips Murrah purchased, Phillips Murrah contributed over $9,000 to the success of the event – enough to make and support six matches for a year!”

BBBS is the nation’s largest donor and volunteer supported mentoring network striving to make meaningful, monitored matches between adult volunteers (“Bigs”) and children (“Littles”), ages 6 through 18, in communities across the country.

“I’ve been involved with BBBS for over 25 years, and I’ve had four matches that spanned that time,” Maule said. “The time I have spent with my Littles has been the most rewarding and challenging times in my life.

“I’ve helped these Littles learn their multiplication tables, write essays, develop artistic and musical talents, and experience things for the first time like an OU football game, a Thunder basketball game, flying, and so many other firsts.  There is no way to put a value on this time, because the time you spend with your Little is invaluable.”

For more information on Big Brothers Big Sisters, click here.

Director hosts presentations on workplace regulations

Byrona J. Maule is a Director and litigation attorney as well as Co-Chair of the Firm’s Labor & Employment practice group. She represents executives and companies in a wide range of business and litigation matters with a strong emphasis on employment matters.

Byrona J. Maule is a Director and litigation attorney as well as Co-Chair of the Firm’s Labor & Employment practice group. She represents executives and companies in a wide range of business and litigation matters with a strong emphasis on employment matters.

Phillips Murrah Director Byrona J. Maule gave two presentations in November, one for Cornerstone Credit Union League and the other to the Women’s Mastermind Group, regarding potential changes in labor and employment matters.

The presentations covered new wage and hour regulations regarding overtime that were slated to go into effect on December 1, 2016.

Maule gave an in-depth look at the regulations, including key components and salary basis changes it would impose as well as steps employers should take to prepare for if it went live.

“Employers should have conversations with employees who are changing from exempt to nonexempt so that the employees understand the impact of that change,” she said. “Employers should also review record keeping requirements for nonexempt employees – as these requirements are very different for nonexempt employees as opposed to exempt employees.”

Maule referenced pending lawsuits against the regulations which have since been put on pause by a national injunction by a federal court in Texas.