The Employment Lawyer Blog by John F. Buckley IV

Single Incident May Support Harassment Claim

nprysby@nlrg.com (Nicole Prysby) — Wed, 20 Sep 2017 14:13:15 GMT

The Third Circuit has clarified the standard used to determine whether conduct is sufficient to support a claim for harassment or a hostile work environment. In Castleberry v. STI Group, 863 F.3d 259 (3^rd Cir. 2017), the plaintiffs were two black employees at an oil and gas company. The employees claimed harassment where their supervisor used a racially-charged slur in front of them and threatened to fire them. Seven co-workers confirmed that the supervisor had made the statement. As to whether one statement or act may be sufficient to support a claim for harassment, the court noted that it had used inconsistent language in the past, including requiring the conduct at issue to be “pervasive and regular” or “severe and pervasive.” The court clarified that the correct standard is “severe or pervasive.” The employer defendant argued that the Third Circuit has never held that a single isolated incident constituted a hostile work environment. The court acknowledged that it had never done so in the past, but stated that the “severe or pervasive” rule is consistent with Supreme Court precedent (citing language in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004) and Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993)) as well as cases from other circuits. The court went on to find that the case should not have been dismissed, because the plaintiffs had shown conduct from the employer that was sufficiently severe or pervasive to survive summary judgment.

If you are an attorney and would you like to discuss this case or how we can help you with an employment law matter, please contact us at www.nlrg.com or by calling 888-295-2963.

DOL Sues J.P. Morgan & Chase for Discriminatory Pay Practices

nprysby@nlrg.com (Nicole Prysby) — Fri, 20 Jan 2017 15:50:48 GMT

The DOL announced that it has filed a lawsuit against J.P. Morgan & Chase for violations of Executive Order 11246. Executive Order 11246 prohibits federal contractors from discriminating on the basis of sex. The lawsuit alleges that since 2012, the company paid women in several job categories (such as application developer leads and project managers) less than men in comparable positions, even after adjusting for non-discriminatory factors. The DOL’s Office of Federal Contract Compliance Programs also found that the company failed to do required evaluation of compensation systems. More information about Executive Order 11246, including applicability and compliance guidance, is available at this DOL website.

EEOC Sues Employer for Reverse Discrimination

nprysby@nlrg.com (Nicole Prysby) — Tue, 17 Jan 2017 22:03:02 GMT

EEOC announced that it is suing California employer Marquez Brothers, Inc., for failure to hire non-Hispanic applicants based on race. The EEOC alleges that Marquez Brothers discouraged non-Hispanic applicants from applying for jobs, favored less-qualified Hispanic applicants over applicants of other races for unskilled labor positions, and asked applicants if they spoke Spanish when Spanish language skills were not a job requirement. The lawsuit, alleging violations of Title VII, seeks back pay, benefits, compensatory and punitive damages, and injunctive relief.

EEOC Amends Rehabilitation Act Regulations

nprysby@nlrg.com (Nicole Prysby) — Thu, 12 Jan 2017 16:22:45 GMT

On January 3, 2017, the EEOC published a final rule amending the regulations implementing Section 501 of the Rehabilitation Act. The law covers the obligations of federal agencies towards persons with disabilities; Section 501 requires agencies to create affirmative action plans. The new regulations specify goals for federal agencies: 12% representation for individuals with disabilities and 2% representation for individuals with targeted disabilities (which include blindness, deafness, paralysis, convulsive disorders, and mental illnesses). The regulations also require agencies to provide personal assistance services to employees in some cases, and consolidate several other requirements from various sources (such as requiring agencies to have written reasonable accommodation procedures). The new regulations are effective as of January 3, 2018.

For more information, see the new regulations and the EEOC’s Question and Answer document.

Court Grants Preliminary Injunction for FLSA Overtime Regulation Changes

nprysby@nlrg.com (Nicole Prysby) — Tue, 29 Nov 2016 16:08:26 GMT

On November 22, a federal district court in Texas granted a preliminary injunction which will prevent the new FLSA overtime regulations from going into effect. Twenty-one states had filed a motion for a preliminary injunction, arguing that FLSA should not apply to the states and that the DOL had exceeded its statutory authority. The court held that it is clear that Congress intended for FLSA to apply to the states, but it agreed with the plaintiffs that the DOL had overstepped its authority. In its ruling, the court noted that the significant increase to the salary level test “creates essentially a de facto salary-only test,” which is impermissible. Nevada v. United States Department of Labor, 2016 WL 6879615 (E.D.Tex., 2016). The court granted a nationwide injunction, which means that no employers will be subject to the rule which otherwise was to go into effect December 1.

EEOC Issues New Enforcement Guidance on National Origin Discrimination

nprysby@nlrg.com (Nicole Prysby) — Tue, 22 Nov 2016 16:21:41 GMT

The EEOC has released updated enforcement guidance on national origin discrimination. The new guidance replaces the existing 2002 compliance manual material. The guidance covers a variety of topics related to national origin discrimination, including harassment, accent discrimination, English fluency requirements and English-only rules, citizenship issues, and decisions based on customer preference.

For additional information, see the EEOC guidance, Q&A, and small business fact sheet.

EEOC Announces $1.5 Million Disability Discrimination Settlement

nprysby@nlrg.com (Nicole Prysby) — Thu, 17 Nov 2016 16:07:34 GMT

The EEOC has announced that Georgia Power Company will settle a class disability discrimination lawsuit for $1,586,500. In the lawsuit, the EEOC alleged that the company automatically disqualified 24 applicants or employees with disabilities without conducting an assessment into whether the employees could do the work. The company refused to hire disabled applicants and refused to return disabled employees to work after they had taken medical leave. In some cases, the company disregarded the opinion of a treating physician who found that the employee could return to work. This settlement demonstrates the need to conduct individual assessments of applicants or employees with disabilities.

For additional information, see the EEOC press release.

Recent Actions Regarding Non-Compete Agreements

nprysby@nlrg.com (Nicole Prysby) — Tue, 15 Nov 2016 19:43:16 GMT

In the last few years a number of states have passed legislation aimed at regulating the use of non-compete clauses for certain categories of workers. Recent reforms include the Illinois Freedom to Work Act (effective 1/1/2017), which prohibits non-compete agreements for workers who earn the greater of (1) the federal, state, or local minimum wage or (2) $13.00 an hour. Because the federal and Illinois minimum wage rates are both currently below $13.00 per hour, $13.00 an hour is the operative figure for application of this statute’s prohibition. Hawaii also passed a law which became effective in 2015 and bars high-tech companies in Hawaii from requiring their employees to enter into non-compete and non-solicit agreements as a condition of employment. In 2015, New Mexico passed legislation limiting the enforceability of non-compete agreements for health care practitioners. The restrictions in New Mexico do not apply to agreements between health care practitioners who are shareholders, owners, partners, or directors of a health care practice.

President Obama recently issued a “State Call to Action on Non-Compete Agreements” which calls on state policymakers to implement best practice objectives for non-compete agreements, which include: (1) banning non-compete clauses for certain categories of workers, such as those working for low wages or working in public health and safety fields; (2) improving transparency and fairness of non-compete agreements by disallowing them unless proposed before a job offer and requiring consideration for workers signing agreements; and (3) incentivizing employers to write enforceable contracts by rendering contracts with unenforceable provisions void in their entirety. The paper notes that multiple states have recently considered legislation regulating non-compete agreements. For additional details regarding the position of the White House regarding this trend, see the State Call to Action on Non-Compete Agreements.

Hospital Settles Claim Filed by Employee Denied Benefits for Same-Sex Spouse

nprysby@nlrg.com (Nicole Prysby) — Tue, 01 Nov 2016 15:09:44 GMT

The EEOC has announced that Mon General Hospital in West Virginia will settle a charge of sex discrimination filed by an employee who was denied benefits for her same-sex spouse. The female employee was married to another female and sought medical benefits for her spouse. She was informed that the hospital’s policy only provided coverage for opposite-sex spouses. The parties reached a voluntary agreement through EEOC’s conciliation process. The agreement provides monetary relief to the employee for costs incurred due to the discrimination and requires the hospital to communicate its new non-discrimination policy to employees. The hospital must also make reports to EEOC semi-annually as to whether any requests for same-sex spouse benefits have been made and whether they were granted. For more details, see the EEOC’s announcement.

Virginia Business Owner Convicted of Felony Wage Fraud

nprysby@nlrg.com (Nicole Prysby) — Thu, 27 Oct 2016 15:39:23 GMT

A Salem, Virginia, business owner pleaded no contest to multiple counts of felony wage fraud and received a nine year suspended sentence. Edward Couvrette, owner of Couvrette Building Systems/CJWA, also received probation, and will have to pay restitution of over $200,000. The company failed to pay employees all wages owed over a period of about eight months. The company and Couvrette personally filed for bankruptcy in 2015. Couvrette placed blame on the company’s ex-CFO, who went to prison in 2009 for defrauding the company.

Although this case involved the business owner, under FLSA, a variety of entities can be held responsible for wage payments violations, including supervisors who exercise control related to the violation, corporate officers who exercise operational control, and corporate alter egos and successors.