Novartis Class Awarded $250 Million in Punitive Damages in Gender Discrimination

New York City – Novartis has been ordered to pay 12 former sales representatives $3.36 million in compensatory damages and $250 million in punitive damages for gender discrimination to 5,600 women in a class lawsuit. The verdict represents the largest punitive damages award in history in any class action employment discrimination case.

Novartis was found liable for gender discrimination in pay, promotional opportunities, and pregnancy-related matters. District Court Judge Colleen McMahon now has the opportunity to order Novartis to change its policies and procedures to prevent future discriminatory behavior. Judge McMahon also will award backpay to the entire class at a later date to make up for the lost earnings Novartis wrongfully denied its female employees. In separate proceedings, compensatory damages also will be decided for each member of the class that opts-in, to include monetary damages for the pain and suffering caused by Novartis’ discriminatory acts. 

The class includes female sales representatives who worked for the drug company between 2002 and 2007. Thirteen of these women testified during the five-week trial in the class action originally filed in 2004. (Amy Velez et al., vs. Novartis Pharmaceuticals Corporation, No. 04 Civ. 09194.(S.D.N.Y.)

US Labor Department Publishes Rule Requiring Posting of Employee Rights

WASHINGTON — The U.S. Department of Labor (DOL) has published a final rule requiring federal contractors and subcontractors to provide notice to their employees of their rights under the National Labor Relations Act (NLRA).

Under the rule, federal contractors and subcontractors will be required to post the prescribed employee rights notice at their workplaces. The notice lists employees' rights under the NLRA to form, join, and assist a union, and to bargain collectively with their employer; provides examples of unlawful employer and union conduct that interferes with those rights; and indicates how employees can contact the National Labor Relations Board (NLRB), the federal agency that enforces those rights, with questions or complaints. The rule implements provisions of Executive Order13496, which was signed by President Barack Obama on Jan. 30, 2009. The requirement for posting this employee notice must be included in every covered federal contract and subcontract.

Under the rule, employees will have the right to file complaints with the Department of Labor about contractors that do not comply with the prescribed requirements. Contractors that violate the requirements of the regulations may be subject to sanctions, including suspension or cancellation of the contract. Two Labor Department agencies, OLMS and the Office of Federal Contract Compliance Programs, are responsible for administering and enforcing the rule's requirements. For more information, visit the OLMS website at www.dol.gov/olms/regs/compliance/EO13496.htm.

Final Regulations of Child Labor Rules for Non-Agricultural Work Released

WASHINGTON — The U.S. Department of Labor (DOL) has published the final regulations updating protections for young employees in non-agricultural work for the 21st century economy.

"Today's regulations protect young employees from dangerous machines and tools, excessive work hours and other hazards at work," said Secretary of Labor Hilda L. Solis. "These rules incorporate recommendations from the National Institute for Occupational Safety and Health and take a common sense approach to keeping young workers safe from harm."

The new regulations give employers clear notice that there are certain jobs children are simply not allowed to perform. They also expand opportunities for young workers to gain safe, positive work experience in fields such as advertising, teaching, banking, and information technology, as well as through school-supervised work-study programs.

The DOL says that with this set of rules complete, it will begin work on strengthening regulatory protections for children working in agriculture.

Teleperformance USA Pays Almost $2 Million in Back Overtime Wages

SALT LAKE CITY — Teleperformance USA, a Salt Lake City-based call center, has paid $1,978,147 in back wages to 15,862 workers for overtime violations under the Fair Labor Standards Act (FLSA). The settlement followed a nationwide investigation conducted by the U.S. Department of Labor's (DOL) Wage and Hour Division in Salt Lake City.

The company, which provides over-the-telephone customer service for clients including Sprint Communications, Verizon Wireless, and Dell Computers, has branches in Georgia, Idaho, Illinois, Indiana, New Mexico, Ohio, Pennsylvania, South Carolina, Texas and Utah.

According to the DOL, the overtime violations occurred primarily because employees were not compensated for all hours worked when the company failed to pay for breaks that were less than 30 minutes in length, or for time spent by employees waiting for work areas to become available even though their shifts already had started. A small percentage of the employees for whom back wages were computed were misclassified as salaried exempt under the FLSA. The DOL says that Teleperformance USA cooperated fully and worked quickly and effectively to resolve all issues identified.

The FLSA requires that covered employees be paid no less than the federal minimum wage, currently $7.25 per hour, for all hours worked. It also requires that workers are paid time and one-half their regular rates of pay for hours worked over 40 in a single week and that employers maintain adequate and accurate records of employees' wages, hours, and other conditions of employment.

For more information about the FLSA, call the Wage and Hour Division's toll-free helpline at 866-4US-WAGE (487-9243). Information is also available on the Internet at www.dol.gov/whd.

Pollard Agency Settles Religious Discrimination Case

ATLANTA, GA – The Pollard Agency, a contract security company, will pay more than $49,000 to settle a religious discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC).

In its suit, the EEOC alleges that the Pollard Agency discriminated against security guard Marian Lawson by firing her rather than accommodating her religious practice of wearing a head scarf. Pollard, whose belief as a Mennonite Baptist requires the scarf, was fired from a client location in Monticello, Georgia.

Title VII of the Civil Rights Act of 1964 requires employers to reasonably accommodate the sincerely held religious beliefs of employees and job applicants so long as such measures do not cause undue hardship to the employer. The EEOC filed suit after first attempting to reach a voluntary pre-litigation settlement through its conciliation process.

The consent decree settling the suit, in addition to the monetary relief of $49,556, includes provisions for equal employment opportunity training, reporting, and postings. In the suit and consent decree, Pollard denied any liability or wrongdoing.

Macy’s Sued by Transgender Employee for Harassment and Discrimination

LOS ANGELES –Jason “Jazz” Araquel, 21, a Filipino-American, has filed a lawsuit against Macy’s Inc. in the Los Angeles Superior Court for wrongful termination and various gender-related grievances during her three years working in the cosmetics department.  According to Araquel’s attorneys, the plaintiff is a pre-operative male-to-female transgender individual whose sexual status was known to store management at the time she was initially employed in a part-time capacity in November 2006. She subsequently became a full-time employee in March 2008 and worked there until Sept. 1, 2009, when she was terminated.

The causes of action cited in the lawsuit include: Gender identity discrimination, gender identity harassment, failure to prevent discrimination and harassment, retaliation for opposing discrimination/harassment in violation of the California Fair Employment and Housing Act (FEHA) and wrongful termination in violation of public policy. The lawsuit seeks general and punitive damages and compensation for emotional distress, pain and suffering, loss of dignity, legal costs, and attorney’s fees.

Araquel alleges that she was repeatedly subjected to “unfair treatment and humiliation.” Araquel’s complaints include not obtaining full-time work until threatening a lawsuit;  ongoing verbal abuse; exclusion from the women’s restroom; work assignments which were not part of her duties; being held to a stricter standard than other employees; and constant ridicule from both management and other employees.

Araquel was ultimately terminated by Macy’s for alleged insubordination and use of foul language. Araquel alleges, however, that she was terminated in retaliation for her numerous complaints to management about harassment and discrimination.

Congress Works on Age Discrimination Legislation

Both the House and Senate have been working on the Protecting Older Workers Against Discrimination Act (POWADA). This legislation is designed to overturn the Gross v. FBL Financials Services, Inc. case that was decided by the Supreme Court last year.

The Gross decision held age discrimination plaintiffs to a higher standard of proof than other victims of discrimination by requiring them to prove their age was the “but for” cause of the employer’s adverse decision instead of “a motivating factor.”

The legislation (H.R. 3721, S. 1756) establishes that:

• standards of proof for all federal laws forbidding discrimination and retaliation (including whistleblowing) are the same
• the plaintiff can choose the method of proof for the case
• employees can rely on any type or form of admissible circumstantial or direct evidence to prove their discrimination and retaliation cases

Perdue Farms Settles EEOC Age Discrimination Suit

LEWISTON, N.C.  – Perdue Farms, Inc. will pay $25,500 to settle an age discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The lawsuit claims that Perdue Farms violated the Age Discrimination in Employment Act (ADEA) by refusing to hire a woman for a position because of her age.

According to the lawsuit  (EEOC v. Perdue Farms, Inc., Civil Action  No. 2:08-CV-38), Audrey  Sheftall applied for a position in the deboning department at Perdue  Farm’s Lewiston, N.C., facility when she was 66 years old. Although Sheftall was qualified for the position, Perdue Farms refused to hire her. According to the EEOC, Perdue Farms subsequently hired approximately 74 substantially younger individuals within the month after Sheftall applied, including Sheftall’s granddaughter, who had applied on the same day as Sheftall.

In addition to paying monetary relief to Sheftall, the settlement requires Perdue Farms to take other actions, including providing annual training on age discrimination and unlawful retaliation to all of its managers and supervisors. In addition, Perdue Farms must post at its Lewiston facility a notice concerning employees’ rights under federal anti-discrimination laws and provide periodic reports to the EEOC on its hiring practices.

US Labor Department Launches Interactive Website on Rights and Responsibilities in Union Officer Elections

WASHINGTON, D.C. — The U.S. Department of Labor has unveiled a new interactive website, or Union Elections Advisor, to help millions of union members, union officers, union election committees and candidates in union elections better understand their rights and responsibilities under the Labor-Management Reporting and Disclosure Act. The site is www.dol.gov/elaws/unionelections.htm.
The Labor Department's Office of Labor-Management Standards administers and enforces most provisions of the LMRDA.

Elaws advisors are free, Web-based tools designed to help workers and employers understand the major laws administered and enforced by the department. By asking a series of questions, the advisors simulate a conversation with a Department of Labor expert and guide users to customized information explaining the requirements of each law.

For example, users are presented with menu options and can access information on various topics. After a user responds to questions regarding the type of union and the purpose of the election in which the user is interested, the OLMS Union Elections Advisor will then:

• Determine whether the LMRDA covers the union officer election.
• Help union members and election officials understand their roles and responsibilities in conducting union officer elections.
• Summarize the requirements and procedures for planning and conducting union officer elections.
• Help candidates and union members understand their rights through the election process.
• Outline the timetable and requirements for protesting an election.

For more information, visit www.dol.gov/elaws.

New Owner Agrees to Harassment Prevention Actions

Paradise, Calif. – TBS Foods, the new owner of the Paradise Jack in the Box store that was involved in a sexual harassment case, will take measures to prevent a sexually hostile environment. TBS has agreed to post anti-harassment and anti-retaliation policies, conduct workforce training on anti-harassment principles and employees rights and obligations, and implement internal harassment investigation procedures.

TBS foods has been working with the EEOC to ensure that preventative and corrective measures are being met. The EEOC has acknowledged the new owners are not responsible for the past conditions, but noted they will be responsible for reporting on compliance regulations.

Western State Hospital Pays $995,000 To Settle Sexual Harassment Lawsuit

The Washington State Department of Social and Health Services and the Washington Federation of State Employees union have agreed to pay nearly $1 million to settle a sexual harassment lawsuit that was scheduled to go to trial next week.

Jackie Delgado, one of more than a dozen women who claimed they were sexually harassed and bullied by Barrette Green, a former Western State Hospital employee, was awarded $995,000 plus attorney’s fees in the settlement.

Green was accused of harassing Delgado for years, including pressuring her into a sexual relationship and at one point holding an unloaded gun to her head. Delgado claims the state did nothing to intervene, despite her multiple complaints.

This case has prompted the Department of Social and Health Services to overhaul its sexual harassment policies and training. The DSHS now requires employees and supervisors to attend training about appropriate workplace behavior, and how complaints should be handled.

Employees Not Entitled to FMLA Leave if They Would Have Been Fired Anyway

The 11th U.S. Circuit Court of Appeals joins three other circuit courts (6th, 8th and 10th) in ruling that an employee is not entitled to Family and Medical Leave Act leave if he or she would have been fired anyway.

According to the ruling in Krutzig v. Pulte Home Corp., No. 09-12512, 2010 WL 1267238 (11th Cir. April 5, 2010), “The right to commence FMLA leave is not absolute, and… an employee can be dismissed, preventing her from exercising her right to commence FMLA leave, without thereby violating the FMLA, if the employee would have been dismissed regardless of any request for FMLA leave.”

Nursing Home to Pay $40,000 to Settle Age Discrimination Lawsuit

GULFPORT, Miss. – Poplar Springs Nursing Center, LLC, will pay $40,000 and furnish other relief to settle an age and race discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission.

According to the EEOC’s lawsuit, Poplar Springs discriminated against Gloria Carey, a 53-year-old black female with 27 years of social work experience, by denying her a social worker position because of her age and race. The EEOC alleged that a less qualified 34-year-old white female was the only candidate interviewed and then hired.

In addition to the $40,000 in compensatory damages, the settlement also requires Poplar Springs to provide training to both management and employees, with particular emphasis on age and race discrimination, and to submit reports to the EEOC detailing its compliance with the consent decree.

Legislation Requires Break Time for Nursing Mothers

A provision of the Patient Protection and Affordable Care Act, signed by President Obama on March 23, 2010, took immediate effect and amends the Fair Labor Standards Act to require all employers covered by the act to provide unpaid break time to nursing mothers for the first year following a child’s birth.

Specifically, this provision requires employers to provide nursing mothers with a reasonable break time to express milk for a nursing child and a location to do so. The nursing location must be a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public. Employers are not required to compensate an employee receiving break time for any work time spent for expressing milk.

This new federal provision will not apply to employers with less than 50 employees, if such requirements would impose an undue hardship on the employer’s business. However, employers also should familiarize themselves with applicable state and local laws, which might be more far-reaching.

Court Emphasizes that Evidence of Training a Must

The Middle District Court of Tennessee rejected the employer's attempt to use the Faragher/Ellerth affirmative defense in a sexual harassment case, even though the employer had an anti-harassment policy in place, the policy was disseminated to all employees, and the Plaintiff admittedly received the policy and was instructed to read it. The Plaintiff stated that she did not follow the instructions to read the policy and had no understanding of the complaint procedure. After noting that there was no evidence that management or the employees (including Plaintiff) received any training on the sexual harassment policy and/or the complaint procedure, the Court concluded that the employer  failed to demonstrate reasonable care to prevent and promptly correct any sexually harassing behavior and therefore was not entitled to invoke the affirmative defense. This case illustrates the importance of training and the growing trend of the courts to require it before allowing employers to avail themselves of the Faragher/Ellerth defense.

Federal Court Enforces EEOC Investigative Subpoena against Bolingbrook Meat Processor

Chicago – A federal court has ordered that Quantum Foods must provide information and documents regarding its hiring and recruiting practices and procedures at its suburban Chicago facility in response to a U.S. Equal Employment Opportunity Commission administrative subpoena.

The subpoena was issued in connection with an EEOC investigation stemming from a charge of discrimination filed by a Hispanic employee contending that he had been fired because of his national origin.  The court rejected Quantum’s contention that the EEOC could not obtain hiring data because the terminated employee had not alleged “that he was discriminated against in the hiring process.”

The court also rejected the company’s contention that the EEOC was seeking information and documents for too long a period.  Quantum’s contention that confidentiality concerns justified its non-compliance also was rejected by the court.

Lafayette College Settles Sexual Harassment Lawsuit

Lafayette College has agreed to pay $1 million to settle a sexual harassment suit brought by five female employees.  The EEOC, on behalf of the female employees, claims a male supervisor engaged in repeated and unwelcome sexual harassment, including allegations that he kissed the women and made hand gestures about sex acts he wanted to them to perform. The male supervisor also allegedly emailed pornography and sexually explicit materials to the women.

Legislation Requires More Training for Government Supervisors

The Federal Supervisor Training Act, introduced by Sen. Daniel Akaka (D-Hawaii), would require government agencies to provide training for supervisors. Training programs are often cut when budgets are tight, but this in turn has a detrimental impact on the employee productivity and the ability of agencies to attain their goals.

The bill requires supervisor training in the areas of:
• Improving employee performance
• Managing poor performers and dealing with hostile work environments
• Encouraging fairness, equal opportunity and merit principles in the workplace
• Working with unions and protecting employee rights

Facebook, Twitter, LinkedIn, Gmail... Technology Creates Opportunities and Risks for Employers

EPS Consultant Maureen Hall, Esq., wrote this article about social media and technology in the workplace.

The continuing explosion of technology – including social networking sites, web-based e-mail and other electronic media – is creating both opportunities and risks for businesses around the globe. In December 2009, 248 million unique users existed on the top eight social networking sites in the US, representing a 41 percent increase from January 2009.¹ According to Facebook’s own statistics, more than 200 million users log on to Facebook in any given day, the average Facebook user spends more than 55 minutes per day on the site, and more than 1.5 million businesses have active pages on Facebook.² Whether employers agree or disagree, the trend is clearly that social networking is here to stay and will continue to impact the workplace in a myriad of ways.

So, what is an employer to do in order to maximize the benefits and minimize the risks associated with this phenomenon? As you might expect, this question raises a complex and ever-changing host of issues and considerations. No “one size fits all” way exists for employers to address these issues. Some employers may decide that there is no business benefit in allowing access to the sites from work, while others identify tremendous business potential from some of the platforms. Additionally, the changing nature of business and technology will require employers to reevaluate policies and practices on a regular basis. Although each employer must evaluate and develop its technology policies on a case by case basis, this article highlights the factors and considerations relevant to the development of workplace practices and policies.
Recognize the Benefits

Until recently, workplace policies have focused on ways to limit the impact of these websites on employee productivity and business objectives. Most employers assume that there are no upsides to the sites, particularly the social networking sites, which distract employees from work-related tasks and create other problematic issues.  Not so, according to many businesses that have harnessed the power of these networks to grow their businesses. Some even claim that the technology promotes the sharing of ideas, encourages employee collaboration, and reduces e-mail clutter.³ For example, LinkedIn offers a “Company Groups” service, which pulls all of a company’s employees into a single Web forum in order to facilitate inter-company communications.⁴

► Read the full Article

Announcement: EPS Leadership Changes

Employment Practices Solutions is pleased to announce that Stephanie Davis, Esq., SPHR, has been selected to lead EPS as President.  Denise Kay, Esq., SPHR, former President and Co-owner of EPS has decided to return to consulting and client development with EPS in the Denver area.

Stephanie joined EPS in 2000 and has held positions of increasing responsibility as Consultant, Senior Consultant and Owner. Stephanie brings with her not only an intimate knowledge of the consultant role, but a broad background in employment law and human resource consulting.

Thank you to Denise for her excellent work and congratulations to Stephanie on this new opportunity!

Healthy Families Act to Require Paid Sick Leave for Low-Income Workers

Washington, D.C. – Proposed legislation will require employers to provide mandatory paid sick leave for more than 30 million additional workers. Sen. Christopher Dodd and Rep. Rosa DeLauro have introduced the Healthy Families Act in both the House and Senate. The Act requires companies with 15 or more employees to provide one hour of paid sick leave for every 30 hours worked or up to seven sick days a year for full-time employees.

The bills, HR2460 and S1152, are currently in committee and haven’t come up for vote. The Obama administration is supportive of the federal proposal.

What to Do When Investigation Implicates HR?

EPS President, Denise Kay, Esq., was quoted in the HR Daily Advisor, What to Do When Investigation Implicates HR?

Why Do Employers Fail to Investigate? Number One Reason

EPS President, Denise Kay, Esq., was quoted in Monday's HR Daily Advisor, Why Do Employers Fail to Investigate? Number One Reason.

Connecticut Woman Claims Genetic Discrimination by Employer

Hartford, Conn. – Pamela Fink has filed a complaint alleging that her employer, MXenergy,  demoted and eventually dismissed her after she disclosed to her bosses that genetic testing results revealed she carried a gene implicated in breast cancer.

This is among the first cases filed under the federal Genetic Information Nondiscrimination Act (GINA), which went into effect in November.  GINA prohibits employers and health insurers from discriminating based on a person’s genetic information.

Fink claims that she had received merit increases and bonuses prior to telling her supervisors about her genetic tests and preventative double mastectomy surgery she was undergoing.  When Fink returned from surgery the company took away her office and most of her duties, according to her complaint.  Fink’s job was the only one in the department that was eliminated about six weeks after she returned from her second surgery.

California Supreme Court Reviewing State’s Pregnancy Discrimination Law

The California Supreme Court is reviewing a pregnancy discrimination case against the City of Santa Monica.  Wynona Harris filed the suit under California’s Fair Employment and Housing Act (FEHA) after her employment was terminated just six days after she informed her supervisor she was pregnant.

According to the LA Business Law Examiner, the City denied that Harris’ pregnancy had anything to do with the termination and claimed the termination decision was based on job performance.

Harris was awarded $177,905 in damages and more than $400,000 in attorneys’ fees, but an appellate court reversed the judgment and ordered a new trial.  The California Supreme Court agreed to review the case and should provide clarification regarding the FEHA in mixed motive cases.

New Legislation to Address Employee Misclassification

WASHINGTON — New legislation has been introduced in the Senate by Sen. Sherrod Brown (D-Ohio) aimed at preventing workers from being misclassified as independent contractors. U.S. Rep. Lynn Woolsey (D-Calif.) has introduced similar legislation in the House of Representatives.

The Employee Misclassification Prevention Act amends the Fair Labor Standards Act of 1938 to add safeguards for misclassified workers.

"I applaud Sen. Brown and Rep. Woolsey for their efforts to address this significant and troubling issue. One of my goals as secretary of labor is to secure minimum and overtime wages and to help middle class families remain in the middle class,” said U.S. Secretary of Labor Hilda L. Solis. “Working on the issue of misclassification is key to attaining those goals because misclassification of employees as independent contractors deprives employees of critical workplace protections and employment benefits to which they are legally entitled.”

The legislation would reduce misclassification violations by:

• Ensuring that employers keep records that reflect the accurate status of each worker as an employee or non-employee and clarifying that employers violate the Fair Labor Standards Act when they misclassify workers.

• Increasing penalties on employers who misclassify their employees and are found to have violated employees' overtime or minimum wage rights.

• Requiring employers to notify workers of their classification as an employee or non-employee.
• Creating an "employee rights web site" to inform workers about their federal and state wage and hour rights.

• Providing protections to workers who are discriminated against because they have sought to be accurately classified.
• Require states to strengthen their penalties for misclassification and conduct audits on employers who misclassify workers.

The bill also gives the Department of Labor and the Internal Revenue Service permission to refer incidents of employee misclassification to one another.