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Recent Employment Law News for May 18, 2013
Employers Are Liable for Questions Asked by Contract Medial Providers In Violation of GINA
Fri, 17 May 2013 15:30:49 - Pacific Time
As a recent case demonstrates, employers must exercise care to avoid a violation of the Genetic Information Nondiscrimination Act (GINA) by permitting improper questions, such as questions about an employee’s family history, by a contract medical provider during preemployment physicals. The case involves Fabricut, Inc., one of the world's largest distributors of decorative fabrics. The company has agreed to pay $50,000 and furnish other relief to settle a disability and genetic information discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). This is the first lawsuit ever filed by the EEOC alleging genetic discrimination. In its lawsuit, the EEOC charged that Tulsa-based Fabricut violated the Americans with Disabilities Act (ADA) when it refused to hire a woman for the position of memo clerk because it regarded her as having carpal tunnel syndrome, and violated GINA when it asked for her family medical history in its post-offer medical examination. David Lopez, General Counsel of the EEOC commented that, "Employers need to be aware that GINA prohibits requesting family medical history…When illegal questions are required as part of the hiring process, the EEOC will be vigilant to ensure that no one be denied a job on a prohibited basis."
According to the EEOC's suit, Rhonda Jones, worked for Fabricut in a temporary position as a memo clerk for 90 days. When her temporary assignment was coming to an end, she applied for a permanent job in that position.
Fabricut made Jones an offer of permanent employment on August 9, 2011, and sent her to its contract medical examiner, Knox Laboratory, for a pre-employment drug test and physical. When Jones reported for her physical,
she was required to fill out a questionnaire and disclose the existence of numerous separately listed disorders in her family medical history. The questionnaire asked about the existence of heart disease, hypertension, cancer,
tuberculosis, diabetes, arthritis and "mental disorders" in her family. Jones was then subjected to medical testing, from which the examiner concluded that further evaluation was needed to determine whether Jones suffered from carpal tunnel syndrome (CTS).
Fabricut told Jones she needed to be evaluated for CTS by her personal physician and to provide the company with the results. Jones's physician gave her a battery of tests and concluded that she did not have CTS. Although Jones provided this information to Fabricut, the company rescinded its job offer because Knox Labs indicated that she did have CTS. Jones made a written request for reconsideration, emphasizing that she does not have CTS, but Fabricut allegedly ignored her request. Such alleged conduct violates GINA, which makes it illegal to discriminate against employees or applicants because of genetic information, which includes family medical history; and also restricts employers from requesting, requiring or purchasing such information. GINA was signed into law in 2008, and took effect the following year. One of the six national priorities identified by the EEOC's Strategic Enforcement Plan is for the agency to address emerging and developing issues in equal employment law, which includes genetic discrimination. Read More..
Employer to Pay $650,000 to Settle Sexual Harassment Lawsuit
Fri, 17 May 2013 14:59:55 - Pacific Time
National Food Corporation, a major supplier of eggs to the Pacific Northwestern and Midwestern United States and East Asia with headquarters in Everett, Washington, has agreed to pay $650,000 to five workers and provide other relief to settle a sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC's suit charged that a supervisor at National Food's egg farm repeatedly demanded sexual favors from a female laborer, who worked alone in a henhouse, in order to keep her job. The supervisor allegedly would physically grab the barn worker and demand sex from her on a weekly basis, from 2003 to 2010. The EEOC also alleged that when the employee’s co-workers raised complaints about sexual harassment to company management, they were fired or forced out of their jobs. David Lopez, general counsel of the EEOC, commented that "This lawsuit is another in an unfortunate pattern of employers taking advantage of female agricultural workers who often work in isolation and are unaware of their rights…It is one of the EEOC's national priorities to combat discrimination against vulnerable workers, and we hope that this settlement sends a message to other employers that they need to be vigilant to prevent sexual harassment and other abuse." Read More..
EEOC Issues Revised Publications on Specific Disabilities
Fri, 17 May 2013 14:45:55 - Pacific Time
The U.S. Equal Employment Opportunity Commission (EEOC) has issued four revised documents on protection against disability discrimination, pursuant to the goal of the agency's Strategic Plan to provide up-to-date guidance on the requirements of antidiscrimination laws. The documents address how the Americans with Disabilities Act (ADA) applies to applicants and employees with cancer, diabetes, epilepsy, and intellectual disabilities. These documents are available on the agency's website at "Disability Discrimination, The Question and Answer Series," http://www.eeoc.gov/laws/types/disability.cfm. According to EEOC Chair Jacqueline A. Berrien, "Nearly 34 million Americans have been diagnosed with cancer, diabetes, or epilepsy, and more than 2 million have an intellectual disability…Many of them are looking for jobs or are already in the workplace. While there is a considerable amount of general information available about the ADA, the EEOC often is asked questions about how the ADA applies to these conditions."
In plain language, the revised documents reflect the changes to the definition of disability made by the ADA Amendments Act (ADAAA) that make it easier to conclude that individuals with a wide range of impairments, including cancer, diabetes, epilepsy, and intellectual disabilities, are protected by the ADA. Each of the documents also answers questions about topics such as: when an employer may obtain medical information from applicants and employees; what types of reasonable accommodations individuals with these particular disabilities might need; how an employer should handle safety concerns; and what an employer should do to prevent and correct disability-based harassment. Read More..
EEOC Files Genetic Information Discrimination Lawsuit Against Rehab Center
Fri, 17 May 2013 14:35:16 - Pacific Time
According to a lawsuit filed by the Equal Employment Opportunity Commission (EEOC) the Founders Pavilion, Inc., a Corning, N.Y., nursing and rehabilitation center, allegedly violated federal law by asking for genetic information during the hiring process. The EEOC also alleged that Founders violated the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act. The EEOC has charged that Founders conducted post-offer, pre-employment medical exams of applicants, which were repeated annually if the person was hired. As part of this exam, Founders requested family medical history, a form of prohibited genetic information. Such alleged conduct is in violation of the Genetic Information Nondiscrimination Act (GINA), passed by Congress in 2008 and enforced by the EEOC. GINA prohibits employers from demanding genetic information, including family medical history, and using that information in the hiring process. The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process. The Founders suit is the second ever GINA lawsuit filed by the EEOC. Read More..
EEOC Alleges Company Required Employees to Participate in Scientology Religious Practices
Fri, 10 May 2013 16:05:29 - Pacific Time
The Equal Employment Opportunity Commission (EEOC) has charged in a lawsuit that Dynamic Medical Services, Inc., a Miami company which provides medical and chiropractic services, violated federal law by requiring employees to attend courses that involved Scientology religious practices. According to the EEOC's suit, the company allegedly required Norma Rodriguez, Maykel Ruz, Rommy Sanchez, Yanileydis Capote and other employees to spend at least half their work days in courses that involved Scientology religious practices, such as screaming at ashtrays or staring at someone for eight hours without moving. The company also instructed employees to attend courses at the Church of Scientology. Additionally, the company required Sanchez to undergo an "audit" by connecting herself to an "E-meter," which Scientologists believe is a religious artifact, and required her to undergo "purification" treatment at the Church of Scientology. According to the EEOC's suit, employees repeatedly asked not to attend the courses but were told it was a requirement of the job. In the cases of Rodriguez and Sanchez, when they refused to participate in Scientology religious practices and/or did not conform to Scientology religious beliefs, they were terminated.
Requiring employees to conform to religious practices and beliefs espoused by the employer, creating a hostile work environment, and failing to reasonably accommodate the religious beliefs of an employee all violate Title VII of the Civil Rights Act of 1964. "Employees' freedom from religious coercion at the workplace must be protected," said Robert Weisberg, regional attorney for the EEOC's Miami District Office. "These actions are a shameful violation of federal law." Read More..
Panel of Experts at EEOC Conference Discuss Legality of Wellness Programs
Fri, 10 May 2013 15:48:42 - Pacific Time
Wellness programs are an increasingly common feature of employee benefits programs, and guidance is needed to avoid violations of federal equal employment opportunity laws, a panel of experts representing business, advocacy groups and providers told the Equal Employment Opportunity Commission (EEOC) at a meeting held today. According to EEOC Chair Jacqueline A. Berrien, "We appreciate the valuable insights and diverse perspectives provided by today's panelists…There has been broad, bipartisan support for the expanded use of wellness programs to reduce health insurance and healthcare costs, but today's meeting underscored the importance of insuring that those programs are designed and implemented in a manner that is consistent with federal equal employment opportunity laws."
A majority of employers now offer some sort of wellness program: 94 percent of employers with over 200 workers, and 63 percent of smaller ones, according to Karen Pollitz of the Kaiser Family Foundation, which researches issues relating to health care. She added that many of these programs offer some sort of financial incentive for participation, which can range from gift cards to higher employer contributions for insurance premiums, or penalties like additional surcharges to employees for health insurance.
The most common intersection of these programs and the statutes EEOC enforces occurs when the programs require medical exams or ask disability-related questions, both of which would ordinarily give rise to a violation of the Americans with Disabilities Act (ADA), EEOC Acting Associate Legal Counsel Christopher Kuczynski told the Commission. He explained that, while the ADA allows employers to ask for medical information in connection with voluntary wellness programs, the meaning of "voluntary" merits further clarification by the Commission. Read More..
EEOC Alleges Employer Withdrew Job Offer Because of Cancer Surgery
Wed, 08 May 2013 16:24:01 - Pacific Time
An Atlanta-based air transport communications and information technology company has agreed to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC charged that SITA Information Networking Computing USA, Inc. violated federal law by rescinding Darlene Case's offer of employment rather than accommodating her disability. The company offer Case a position as a full-time personal assistant to SITA's vice president. Shortly after accepting the offer, however, Case learned that she would require cancer surgery, and requested a reasonable accommodation of having her start date moved. Although SITA agreed to this accommodation, when her extended start date arrived, Case then requested that she be allowed to work part-time for the first two weeks to complete her recovery. SITA allegedly refused to grant this request and instead rescinded its employment offer. Read More..
Employer Agrees to Pay Almost $2 Million in Overtime Back Wages
Mon, 06 May 2013 22:37:44 - Pacific Time
Hutco Inc., a major industrial services employment agency, has agreed to pay $1,916,850 in back wages to 2,267 employees assigned to client work sites throughout Louisiana, Mississippi and Texas. The Department of Labor’s (DOL) Wage and Hour Division conducted an investigation and found that the company allegedly used improper pay and record-keeping practices that resulted in employees being denied overtime compensation in violation of the Fair Labor Standards Act (FLSA). According to the DOL, the company mischaracterized certain wages as "per diem" payments and impermissibly excluded these wages when calculating overtime premiums, thus denying employees earned overtime compensation. This pay practice also resulted in FLSA record-keeping violations involving the accuracy of employees' wages and actual hours worked.
Pursuant to the FLSA, an employee's regular pay rate, upon which overtime must be computed, includes all wages for employment, except certain payments excluded by the FLSA, such as reimbursements for work-related
expenses. Payments reasonably approximating travel or other expenses incurred on the employer's behalf may be excluded from the employee's regular rate of pay when computing overtime. However, where an employee receives such payments but actually incurs no such additional expenses, such payments do not constitute bona fide reimbursements and must be included in the employee's regular rate of pay for purposes of computing an overtime premium. Read More.