Thursday, October 23, 2014

Update: CVS Severance Agreement Case Dismissed

The EEOC’s case against CVS in Illinois has been dismissed, albeit on a technicality.

CVS’ severance agreements were the subject of the litigation. Specifically, the EEOC believed that the fine print of the severance agreements would require employees to give up the right to sue in exchange for some benefits. The EEOC argued it violated Title VII for discouraging employees from enforcing those rights.

CVS sought to dismiss the case before trial, arguing that its severance agreements contained the same language commonly found in most agreements. The district court judge did not address the substantive merits of the claims by the parties. Instead the case was dismissed because the EEOC failed to engage in its legally mandated formal settlement discussions with CVS before filing the case. The EEOC was required to try and eliminate “any such alleged employment practice by informal methods of conference, conciliation and persuasion.” Trying to get around this obligation, the EEOC unsuccessfully argued that it had brought the suit under a different section where the company was “engag[ing] in a pattern or practice of resistance to the full enjoyment of rights” under Title VII.  As was evidenced by the dismissal, the court did not accept this argument.

Wednesday, October 22, 2014

California Employers: Anti-Bullying Now Part of Your Responsibility

California continues to expand the scope of an employer’s responsibilities by now including anti-bullying as part of sexual harassment training.

Current California law mandates that employers with over 50 employees must provide two hours of sexual harassment training and education at least every other year. That mandate will soon include training to prevent “abusive conduct.” “Abusive conduct” will be defined in the California Fair Employment and House Act as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to legitimate business interests.” Some of the examples provided are: “repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.” Generally speaking, a single act is unlikely to be sufficient unless particularly egregious.

This new law, only a mandate for training, created no unique cause of action for “abusive conduct.” However, abusive conduct in the context of discriminatory acts directed at member of a protected class could be part of a lawsuit.

Thursday, October 16, 2014

California Becomes First State to Pass New Data Breach Law

Employers in California must now be aware of their increased legal responsibility toward employees who have had their data breached.

California companies were already required to notify all individuals impacted by a data breach. The amended law expands that obligation, requiring that the source of the breach offer “appropriate identity theft protection and mitigation services” at no cost to California residents impacted by the breach. These services must be provided for 12 months following the breach. The language of the statute does not clarify what those “appropriate” services might be.

A breach that includes data that all employers maintain such as names, Social Security numbers and driver’s license numbers, will trigger the obligations of the statute. Data breaches have been all over the news and, in fact, one study concluded that 43% of companies experienced breaches in just the last year.

Wednesday, October 15, 2014

Most Surprising Result of Customer Service Complaint

A California resident by the name of Conal O’Rourke was having some problems with his cable provider, Comcast. He complained like everyone does to the Customer Service representative. There were problems with billing such as erroneous charges, bills that never arrived, and discounts that were not applied. He called to cancel the service but Comcast convinced him to stay with promises of free perks. Instead, Mr. O’Rourke received a bill for $1,820 of equipment he had not ordered. Now Mr. O’Rourke was really angry. He skipped over the customer service department and went straight to the Comcast controller.

It was during this call that the situation took an unexpected turn. Mr. O’Rourke, an accountant at PriceWaterhouseCooper (PWC), suggested to the Comcast controller that its billing practices should be subjected to a Public Company Accounting Oversight Board Investigation. In reaction to this call, someone at Comcast contacted a partner at PWC, which led to an ethics investigation. The result: Mr. O’Rourke lost his job. The sides disagree as to whether Mr. O’Rourke had identified himself as an employee of PWC during his discussion.

Comcast admits that it contacted PWC. It claims that: “Comcast communicated to PWC that a person claiming to be a PWC employee had called our chief accounting executive’s office with complaints about his cable services and bills, and yelled at our employees who tried to assist him.” PWC does not audit Comcast’s books but they do provide consulting services to the cable provider. PWC claims it fired Mr. O’Rourke because he did not comply with its policies pertaining to employee conduct. Comcast has apologized, but only for its poor cable service.

Tuesday, October 14, 2014

Sexual Harassment Huge Problem at Restaurants

A new report about the treatment of women in restaurant jobs was recently released. Ninety percent of women questioned reported that they were subjected to sexual harassment. The greater concentration of harassment occurred where the women had tips as a significant portion of their income. The National Restaurant Association has dismissed the report as part of a national campaign to disparage the industry.

The 34 page report entitled “The Glass Floor: Sexual Harassment in the Restaurant Industry” was compiled with the help of many women’s and workers’ rights organizations. The female tipped restaurant workers were subjected to “very high rates of unwanted, scary sexual behavior in the workplace.” To get tips, these female workers felt like they had to dress and act in ways that may make them more vulnerable to harassment by customers, co-workers and managers.

Apparently, women living off tips in states with a $2.13 per-hour tipped minimum wage are twice as likely to be sexually harassed as women working in states that require a full minimum wage for workers. These same $2.13 workers was three times as likely to be told to dress “sexier” by their supervisors. A third of female workers reported experiencing sexual harassment from customers on a weekly basis and three-quarters of these workers experienced that harassment from their co-workers on at least a monthly basis.