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Proposed Changes to Expand Coverage for Military FMLA

karmstrong — Wed, 01 Feb 2012 12:32:30 +0000

The U.S. Department of Labor (DOL) recently announced proposed changes to military FMLA (Family Medical and Leave Act). The DOL issued a notice of proposed rulemaking that would expand family leave for those in the military, as well as instigate a special eligibility provision for airline flight crew employees.

The FMLA, signed into law in 1993, offers protection for employees taking leave for reasons related to family and medical. It allows such employees to remain covered under a group health plan during an absence from work. Twelve workweeks in a 12-month period are allotted for a birth or newborn child, placement of an employee with a child for adoption or foster and care for said child within one year, care for an immediate family with a health condition, the employee’s own care, and any exigency (urgent need) with relation to an active military family member. Twenty-six workweeks within 12 months are covered to allow an employee to care for a servicemember who’s ailing or injured.

The proposed changes would permit an employee to take leave during or following an immediate family member’s deployment for matters related to the person’s service (e.g., military briefings, financial or legal arrangements). The 26-workweek option would be extended to care for family members who are veterans with an illness or injury that occurred in the line of duty, including conditions that have arisen only after the veteran had left the service. The amount of time to spend with a family member while on rest or recuperation would likewise be extended, from five and up to 15 days. The FMLA coverage, which currently only covers the National Guard for qualification of exigency leave, would also extend to family members serving in the armed forces.

The proposed revision for airline flight crew employees would add a special hours of service eligibility requirement and specific alterations for calculating the amount of FMLA leave. The hours that crew members work are difficult to track, and the proposed changes are intended as a more accurate and simpler way in which to take the hours into account.

“Keeping the basic promise of America alive means ensuring that workers, from our servicemen and servicewomen who keep us safe at home to the flight crews who keep us safe in the skies, have the resources, support and opportunities they need and have rightfully earned,” said Secretary of Labor Hilda L. Solis in a press release. “The proposed revisions… are an important step toward keeping that promise.”

Secretary Solis discussed the amendments at Joining Forces for Caregivers, an event held Monday, January 30th, in Washington, D.C. Also speaking were First Lady Michelle Obama and RyAnne Noss, wife and caregiver of an Army Ranger injured in Afghanistan. In reference to the DOL’s proposed FMLA changes, the First Lady stated that “these new rules will make a real difference for our military families in so many ways, and remember, these protections are simply a few of the many steps this administration has already taken on behalf of our caregivers.”

Lawsuit Alleging Racial Discrimination and Retaliation

vassallo — Sat, 28 Jan 2012 03:50:45 +0000

A lawsuit has recently been made against the Sam Houston State University, claiming that the university is guilty of both racial discrimination and retaliation. The lawsuit was filed within the United States Court in the Southern District of Teas in the middle of January.

An African American woman, Angel Lamb is suing the university stating that they denied her of a raise or a promotion simply because she is African American. She believes that her race played a major role in the reason why she was never promoted and never received a raise. The former interim direct of the Human Resource department, David White, took his position within the HR department in the beginning of 2009. According to the lawsuit, this is when the racial discrimination first started. Lamb says that she even worked right under the HR Associate Director, Cynthia Bennett.

In the lawsuit, Lamb says, “After White’s promotion, White and Bennett targeted three black HR employees in an effort to get them to quit and ‘cleanse’ the HR department.” Lamb is currently working as an associate within this department and has been employed with the university for two decades.

In the lawsuit, Lamb claims that she often received reviews for her performance at her place of work until White received his promotions. She says after she received her promotion, she received a poor review of her job performance. This took place in February of 2009. The lawsuit says, “This poor review caused her to be denied for a raise, which the white employees at her level received.”

The lawsuit also states that this situation occurred once again in June of 2008 but that every single person received a raise aside from the black (African American) employees. Aside from filing racial discrimination against the university, she also claims that she received retaliation for making complaints about the problem to the supervisor.

In April of 2010, she filed a grievance about not receiving a promotion. After doing so, she received a warning from Bennett. The lawsuit states,”[Lamb] allegedly internally identified the name of a newly hired employee, although there is no known policy regarding this issue.” It also states, “This warning has since been used to further subjugate Lamb and ‘keep her in her place.’ The warning was held over Lamb’s head and she was frequently reminded that, ‘there is consideration of suspension without pay and it is currently under review.’”

Lamb is also suing for damages and the costs that have to do with the lawsuit, including lawyer fees. The university refused to comment and lawyers were not available for comment on the lawsuit either. When officials were asked, they were unaware of the current lawsuit that was taking place and could not comment.

EEOC Reports Record Increase in Charges and Monetary Relief

karmstrong — Wed, 25 Jan 2012 13:07:36 +0000

The U.S. Equal Employment Opportunity Commission (EEOC) has reported a record number of charges of discrimination in the workplace, as well as a record amount relief acquired through its administrative program and litigation, in the 2011 fiscal year.

According the EEOC, there were 99,947 claims of employment discrimination, with 455.6 million dollars in relief attained. For the second consecutive year, the EEOC resolved more charges than it received: a total of 112,499 resolutions, an increase of over 7,500 from the previous year. There are currently 78,136 pending charges, which is a 10 percent drop in the Commission’s inventory, the first time there has been a reduction since 2002. The past three years has seen an increase in relief, with the 2011 fiscal year having a 45 million-dollar jump over 2010.

Charges of retaliation represented the majority of claims, holding 37.4 percent with 37,334 charges received by the EEOC. Racial discrimination claims saw a decline this year but still made 35.4 percent with a total of 35,395 charges. The other charges most frequently noted were discrimination based on individuals’ sex (28,534), disability (25,742) and age (23,465). The largest increase in relief was from allegations of disability discrimination, moving from 76.1 million dollars in 2010 to 103.4 million dollars for this year, an astounding 35.9 percent bump. Back impairments were cited most often as violating the Americans with Disabilities Act (ADA), while other charges included orthopedic impairments, depression and diabetes.

The 2011 year was the first full fiscal year of enforcement for the Genetic Information Nondiscrimination Act, which was implemented to subvert discrimination on the basis of genetic information, such as family medical history. The EEOC received a total of 245 charges of such discrimination, but none of these charges are presently in litigation.

“The hard work of our employees, combined with increased investments in training, technology and staffing in 2009 and 2010, and strategic management of existing resources made 2011 a year of extraordinary achievements for the EEOC,” said EEOC Chair Jacqueline Berrien in a press release.

The EEOC’s mediation program, which settles cases before they reach litigation, also saw record highs. There was a five percent increase in resolutions over the 2010 fiscal year, as well as 170,053,021 million dollars in benefits, a 29 million-dollar surge over the prior year. Similarly, 5.4 million people benefited from alterations of employment policies or practices at work. Approximately 540,000 individuals had the opportunity to take part in the Commission’s public outreach and education programs. And in the federal sector, where the EEOC’s enforcement obligations are not the same, 7,672 requests for hearings were resolved with relief totaling 58 million dollars. There were also 4,510 appeals resolved from final agency determinations.

The Equal Employment Opportunity Commission enforces Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Equal Pay Act, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act, which was signed into law in 2008.

Pepsi to Pay $3.13 Million to Resolve Hiring Discrimination

karmstrong — Mon, 23 Jan 2012 13:43:01 +0000

Pepsi Beverages will be paying over three million dollars to settle a charge of racial discrimination filed by the Minneapolis Area Office of the U.S. Equal Employment Opportunity Commission (EEOC). The company will also be providing job offers and training as per the agreement.

The EEOC initiated an investigation into the criminal background check policy formerly utilized by Pepsi. The investigation found that more than 300 African American applicants had been unfavorably affected by a background check under this policy, which unduly disqualified the applicants from permanent employment at the company. According to the policy, applicants would had been arrested pending prosecution were excluded from a permanent position even if they had never been convicted of a crime. Applicants were likewise denied employment if arrested or convicted of particular minor offenses. Denying employment based on arrest and conviction records is a possible violation of Title VII of the Civil Rights Act of 1964. If the arrest or conviction is not relevant to the job, it could restrict employment opportunities for some people based on race or ethnicity.

“The EEOC has long standing guidance and policy statements on the use of arrest and conviction records in employment,” said EEOC Chair Jacqueline A. Berrien in a press release. “I commend Pepsi’s willingness to reexamine its policy and modify it to ensure that unwarranted roadblocks to employment are removed.”

During the EEOC investigation, Pepsi amended its policy in criminal background checks. A 3.13 million-dollar settlement was reached, with the majority divided among the affected African American applicants and a portion assigned to the process for filing the claim. Employment opportunities will be made to the applicants who still want and are qualified for jobs at the company. Pepsi will also submit regular reports to the EEOC on its hiring practices under its new policy. Title VII training will be provided for the company’s hiring personnel and all of the managers.

Julie Schmid, Acting Director of the Minneapolis Area Office, stated, “When employers contemplate instituting a background check policy, the EEOC recommends that they take into consideration the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job sought in order to be sure that the exclusion is important for the particular position.”

“Such exclusions,” Schmid added, “can create an adverse impact based on race in violation of Title VII. We hope that employers with unnecessarily broad criminal background check policies take note of this agreement and reassess their policies to ensure compliance with Title VII.”

The Equal Employment Opportunity Commission enforces federal laws related to employment discrimination. Its Minneapolis Area Office is a part of the EEOC’s Chicago District. The Chicago District is responsible for investigating allegations of discrimination in Illinois, Minnesota, Wisconsin, Iowa, and North and South Dakota.

Swarthmore College Hires New VP of HR

vassallo — Fri, 20 Jan 2012 01:29:59 +0000

The new vice president for human resources at Swarthmore is Pamela Prescod-Caesar. Her position begins on February 15, 2012. She is taking over the role previously held by Melanie Young. While serving as the vice president for human resources, Prescod-Caesar will be responsible for establishing and communicating human resources policies to staff and faculty at the school along with the Board of Managers.

“I very much look forward to working in partnership with faculty and staff members to advance the strategic initiatives of Swarthmore and I’m very excited at the prospect of becoming an integral part of the College community,” says Prescod-Caesar.

President Rebecca Chopp explained that she is pleased with the decision by the college to hire Prescod-Caesar as the new vice president of human resources. The search committee reviewed hundreds of applicants from across the country, bringing them to campus for interviews with staff, faculty, and students.

“The members of the search committee and I believe she will bring significant leadership to HR and that she will join all of us in sustaining and improving our community,” Chopp said. “Pamela is skilled at developing collaborative partnerships. In her previous positions, she has had great success in finding solutions for complex problems that yield beneficial community outcomes. Among such successes is her rich history of creating and implementing diversity programs that foster and support building inclusive communities. Pamela also has experience in helping an institution achieve its organizational goals through the implementation of its strategic plan.”

Right now, Prescod-Caesar is the associate vice president for human resources with Colgate University. President Chopp also served at Colgate prior to moving to Swarthmore. Her Colgate colleagues held her in high regards.

“Pamela is a charismatic, creative leader who has a great sense of humor,” says Lori Chlad, the director of human resources at Colgate University. “Pamela has strengthened Colgate’s Human Resources department and helped the staff achieve their full potential. We wish Pamela and her new staff at Swarthmore the best of luck as they embark on this new journey.”

The experience list for Prescod-Caesar is lengthy and very impressive. It includes beinga member of the Society for Human Resources Management, which is an international association that is devoted to human resource management. She is also a member of the College and University Professional Association for Human Resources, which is a national association for higher education human resources. Prescod-Caesar previously served as a member on the board of Roxbury Comprehensive Health Center and the Greater Boston YMCA Black Achievers Alumni Association. Prescod-Caesar was also a fellow in Harvard University’s Administrative Fellows Program.

Prescod-Caesar and her husband Henry have two children. Those two children are completing their education at the moment. Nichole, who is 23, is studying at Boston College and Toren, who is 21, is studying at the University of Massachusetts Amherst.

Did University Fail to Accommodate Custodian?

karmstrong — Wed, 18 Jan 2012 13:06:16 +0000

A former custodian at Purdue University in Indiana filed a complaint in court against the university and one of its administrators. He alleged retaliation and violations of Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), and his due process rights in relation to his job at Purdue.

The man, a Bulgarian, began working at the university as a Service Worker III in 1998. His duties included cleaning “The Oasis” area in the Purdue Memorial Union, but in February of 2004, he was moved to the supermarket area and west stairs. These new areas required different cleaning products, which the employee claims incited chemical allergies and injuries. More specifically, the chemicals caused difficulty breathing and a general weakness. His requests to return to the products that he had previously used were denied by his supervisor.

In March, the man was issued warnings for sleeping on the job, but he alleged that he had fallen and was rendered unconscious by the new chemicals. The university recommended that the employee see a physician, whose report was “inconclusive” but who advised that the man not use the cleaning products. The man claims that he was required to continue working with the chemicals, an allegation denied by his supervisor in court. After a second visit, the physician recommended that the employee avoid working with any chemicals or chemical fumes. Documentation was send to the university, and the employee did not work for the next four months.

The man filed a grievance in October, believing that he could return to work utilizing an alternate cleaning product. His employers complied, and he continued working in his assigned areas with another chemical until March of 2006. During that time, however, he was issued a letter for committing “unsanitary safety food violations” and warned against sitting on the job. With regard to the latter, the man claimed an allergic reaction to the chemicals, though he was no longer using the earlier product.

The cleaning department was then reassigned, and the employee was given a position and shift that he did not want. The employers informed him that he was given the only job available that did not use the product in question. The following six months entailed arguments over the man’s restrictions and specific medical documentations. His employment was terminated, however, because he had not worked on what he believed was his day off.

He alleged in his complaint that Purdue University did not accommodate him for his disability, denied him opportunities because he was Bulgarian (more favorably treating non-Bulgarian employees) and retaliated against him for filing a complaint with the Equal Employment Opportunity Commission (EEOC). A district court granted summary judgment for the university because the man failed to prove retaliation, pretext or discrimination based on his nationality. The university was likewise entitled to sovereign immunity with respect to the claim of an ADA violation.

On appeal, the man claimed that his discharge was “improper,” but he neither cited an error from the district court nor any legal evidence. Accordingly, his appeal was dismissed.

Woman at Telephone Company Alleges Retaliation for FMLA Leave

karmstrong — Tue, 17 Jan 2012 13:53:39 +0000

A woman working in customer service at Southwestern Bell Telephone Company was terminated. She filed a lawsuit, claiming that she was fired for taking FMLA (Family Medical and Leave Act) leave. The courts had a different opinion.

The woman had been employed at the company for seven years, working in sales and handling customer complaints. While employed, she took approved, intermittent FMLA leave, a fact which Southwestern Bell did not dispute. She alleges, however, that she was mocked by her manager for taking leave and called an “FMLA queen.” She further claims that the manager denied her a pin number necessary to apply for a higher level job but informed her that, if she worked for three months without an FMLA leave, she could have the job.

In October of 2007, the woman took a call from an irate customer. The employee attempted to transfer the call, as per her training, but the customer was further angered at the prospect of being placed on hold again. It was at this point that the employee’s tone apparently “became sarcastic,” and the two argued. The customer finally demanded to speak with a supervisor, after which the employee stated loudly, while transferring the call and with the customer still on the line, “She’s crazy.” The employee then threw down her headset.

The woman was later suspended without pay and, following a hearing, was terminated in December. She filed a grievance, and was offered by the associate director of human resources a “Last Chance Agreement,” which stipulated that she would keep her job without back pay but might be terminated for any infraction during a 36-month probationary period. The woman declined the offer and appealed the decision to the lead labor relations manager. The company states that the employee was subsequently offered a reduced probationary period of 18 months, but she again refused. The employee disputes this, claiming that she was never offered any less than 24 months.

The woman filed suit in a district court claiming retaliation for her FMLA leave. The court granted a motion of summary judgment in the company’s favor, stating that the woman “had failed to rebut [the company’s] legitimate, non-retaliatory reason for her termination.” In other words, she never disputed the October incident that the company claims was the reason that she was fired. She appealed the decision.

The U.S. Court of Appeals, Fifth Circuit, believed that, since the company did not dispute the FMLA leave and its stated reason for termination was not disputed by the plaintiff, the burden of proof would lie with the employee. The woman cited two other employees, one whom she alleges fell asleep and the other who allegedly “over-talked a customer,” but she failed to establish that the other workers were in circumstances similar to her own. She further noted an email from the attendance and administrative manager asking employees to report those who abused FMLA leave and the “FMLA queen” remark, but there was no evidence that either manager had influence or was involved in the woman’s termination.

As the plaintiff was unable to prove a pretext for FMLA retaliation, the appeals court affirmed the district court’s decision.

Family Dollar Will Pay $45,000 to Settle Sexual Harassment Suit

karmstrong — Fri, 13 Jan 2012 13:47:43 +0000

Discount retailer Family Dollar Stores of Virginia, Inc. will be paying 45,000 dollars to settle a sexual harassment lawsuit. The suit was filed by the U.S. Equal Employment Opportunity Commission (EEOC) for a female employee.

According to a complaint filed by the EEOC, a woman was sexually harassed by her male store manager at a Family Dollar store where she was employed in Richmond, VA. The female worker was a customer service representative at Family Dollar from August 19th to September 5, 2009. The manager, who was the employee’s direct supervisor, allegedly harassed the woman by groping her and propositioning her sex. The complaint states that the woman’s objections were neglected, and the questionable conduct continued. The complaint further alleges that the manager reduced the employee’s hours for one particular week and informed her that she would have to allow him at her home in order to have her work hours reinstated. She refused this offer and resigned the subsequent day.

After initially trying to reach a pre-litigation agreement, the EEOC filed the complaint on September 29th in the U.S. District Court for the Eastern District of Virginia, Richmond Division. The EEOC sought back pay, compensatory, damages and punitive damages, rightful-place hiring and injunctive relief. The complaint alleges that the man’s behavior was a violation of Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment, among other things, such as discrimination based on people’s race, age or religious beliefs.

“Employees should not have to tolerate unwanted sexual conduct as a condition of employment,” said Lynette A. Barnes, regional attorney of the EEOC’s Charlotte District Office, in an EEOC press release. “Employees should not feel compelled to quit their jobs to avoid being harassed. The EEOC will vigorously prosecute employers who allow employees to be sexually harassed.” The Charlotte District Office includes the EEOC’s Richmond Local Office, where the complaint was filed.

As part of a consent decree, Family Dollar has agreed to supply copies of the company’s antidiscrimination policies and complaint procedures to each employee working in stores within the company’s District 184. Family Dollar, which operates approximately 7,000 retail stores throughout 44 states, will also be required to train managers and employees on the same policies and procedures. Additionally, the stores within District 184 will have posted copies of the harassment policy, while the precise store where the female employee worked will have a notice about the lawsuit posted.

“Employers are reminded that it is not enough to have policies prohibiting sexual harassment in place, hidden away in a handbook somewhere,” said Barnes. “Employers must ensure that employees are adequately informed of these policies and of procedures for making complaints about sexual harassment.”

The U.S. Equal Employment Opportunity Commission is an organization that was implemented to enforce federal laws prohibiting employment discrimination.

Denying Tenure a Retaliation for Exercising Freedom of Speech?

karmstrong — Thu, 12 Jan 2012 14:53:07 +0000

A special education teacher working in New York was informed that she had not been recommended for tenure and that her employment would consequently be terminated by the end of the school year. She claims, however, that her denial of tenure was retaliation, due to a couple of incidents that were protected by her First Amendment rights.

In 2004, the teacher had been appointed to the tenure track, which is much like a probationary period. But the first incident cited in her claim occurred a couple of years previously, while she was working at a Virginia school. She reported to the school’s principal that she had overheard another teacher verbally abusing students and had further learned from other school employees who had witnessed verbal and physical abuse. The teacher in question resigned after a private nurse had reported seeing her strike a child. Because she retained her teaching license, the plaintiff relayed the information to Virginia authorities and child protective services. The woman ultimately pled guilty to charges brought against her.

The second claim of a violation of First Amendment rights took place in 2007. The plaintiff refused to sign a teaching observation report written and signed by the assistant principal at the New York school. Her signature, however, appeared on the report, and she notified the principal, assistant principal and the president of the teachers’ union of the alleged forgery. The police determined that no crime had been committed, but the plaintiff and the school separately hired handwriting experts, who concluded that the forgery was at the hand of the assistant principal. She resigned after her contract was not renewed.

The teacher filed suit against the school, the superintendent and the assistant superintendent, claiming that not recommending tenure was retaliation for reporting the abuse and forgery, both protected by the First Amendment. The school countered by claiming that denying the woman tenure was due to her behavior at a December 2006 meeting. There, she left the meeting in tears after being informed that she had twice violated school protocols: reading a book to her class without consulting the school psychologist, and sending a child home early without consulting the school administration. A district court ruled in favor of the school, not believing that the reports were protected. The court stated that the report of abuse “undisputedly violated reasonable protocols” and noted the time passed and the incident occurring in another state.

The U.S. Court of Appeals conceded that the report of forgery was not protected. With regard to the abuse report, however, the court disagreed. It did not see a clear violation of “reasonable protocols” and furthermore found no support of a person not abiding by rules and losing the right to freedom of speech as a result. In the same vein, it saw no time limit for First Amendment protections. The superintendent implied that he had learned of the Virginia incident only after he had considered denying tenure, but the court believed that, since a decision had not been finalized, causation – linking the denial with the report(s) – could still be argued.

The appeals court vacated the grant of summary judgment and remanded the case for further proceedings.

Man Accused of Murder Uses Retirement Plan Funds for Legal Fees

karmstrong — Thu, 05 Jan 2012 13:26:15 +0000

A Wisconsin murder suspect is being permitted to utilize funds from his 401(k) to hire an attorney for representation.

Jason Anderson of Fond du Lac, WI, was arrested in November for the murder of his wife, Nicole Anderson, who was discovered dead at their home from a single gunshot wound. After fleeing from the authorities, he was picked up by the police in Alabama and extradited to Fond du Lac. A one-million dollar bond was set in December.

Anderson, who reportedly claimed to police that the shooting was an accident, was denied access by Judge Peter Grimm to his martial estate for the purpose of paying for a lawyer. However, Judge Richard Nuss of the Fond du Lac County Circuit Court allowed Anderson to extract 37,000 dollars from his 401(k) savings plan. A defense attorney, Robin Shellow, said that the suspect was planning on hiring her to represent him.

A 401(k) is a retirement savings plan with funds from which employees generally cannot withdraw until at or around the age of 59½ years. The exception to potential extraction from a 401(k) is “hardship distribution.” The IRS defines such a hardship as “an immediate and heavy financial need” for the employee. Whether the requested funds are immediate or heavy is dependent upon the individual person and the situation. The IRS lists possibilities such as medical expenses, costs in relation to the purchase of a principal residence, tuition and expenses related to education, monetary safeguards to prevent eviction or foreclosure of a principal residence, burial or funeral expenses, or expenses for the repair of a principal residence. A person younger than 59½ with a 401(k) really only has to prove that he/she is experiencing a hardship to withdraw funds.

A 401(k) and other plans may provide hardship distributions but are not required to do so. The IRS states that, if providing for hardship distributions, a 401(k) “must provide the specific criteria used to make the determination of hardship.” In other words, distribution may be made for medical expenses, as an example, but not for tuition. To determine the actual need and the required amount to satisfy the need, the plan “must specify and apply nondiscriminatory and objective standards.”

Shellow filed a document which alleged that Anderson stated that, on the night that his wife was killed, he believed he heard an intruder. He armed himself, and a handgun was inadvertently discharged when the trigger guard made contact with some furniture, the recoil causing the man to nearly fall and the gun to fire a second time. District Attorney Dan Kaminsky and Chief of Police Bill Lamb said in a press release that Anderson’s documented claim will not affect the charge of first-degree intentional homicide that was filed.

A preliminary hearing for Anderson’s case is scheduled for this Friday, January 6th.