The Ninth Circuit recently approved the Department of Labor’s ability to regulate “tip pools” and “tip credits.” The Court ruled that employers may not force employees to pool their tips with cooks and other typically non-tipped employees even when the employees were receiving at least minimum wages before tips. The Court also confirmed the Department’s authority to regulate tip pools where a tip credit is not utilized and found that the Department’s formal rule that extended the tip pool restrictions of Section 203(m) to all employers, not just those who take a tip credit, “is consistent with the FLSA’s language, legislative history, and purpose.” Oregon Rest. & Lodging Ass'n v. Perez, Nos. 13-35765, 14-15243, 2016 U.S. App. LEXIS 3119, at *25 (9th Cir. Feb. 23, 2016).
NFI RoadRail, LLC and NFI Industries, Inc. have reportedly agreed to pay $45,000 to settle a gender discrimination lawsuit. The lawsuit alleged that the companies paid a female director less than three male directors who had worked in the same role. The female director discovered the pay disparity after she saw a pay stub for one of the former male directors. The Equal Pay Act of 1963 prohibits employers from paying women a lower salary than men for equal work. See Equal Employment Opportunity Commission v. NFI Industries, et al., Civil Action No. 3:14-cv-00181-N (N.D. Tex. 2014)
Windings, a manufacturing company based in Minnesota, has reportedly agreed to pay $19,500 to settle a race discrimination lawsuit brought by the Equal Employment Opportunity Commission. The lawsuit alleges that the company hired a white employee instead of a biracial (African-American and white) employee because of his race. The lawsuit alleged that the biracial applicant was qualified, had previous experience, and passed job-related assessment tests. Making a hiring decision based upon an applicant’s race is prohibited by Title VII of the Civil Rights Act of 1964. See Equal Employment Opportunity Commission v. Windings, Inc.; Civil Action No. 15-cv-02901
The Supreme Court of the United States ruled 6-2 recently to reject Tyson Foods challenge of a class action award for certain of its employees. The lower court had entered judgment of nearly $5.8 million for the class action lawsuit that arose because of alleged underpayment of wages. Over 3,000 workers sued Tyson to be compensated with overtime pay for time that they had spent putting on and removing protective clothing before using sharp knives used for their job. Tyson did not log these employees hours, so plaintiffs’ attorneys instead used statistics experts to estimate the amount of overtime wages that Tyson owed to the plaintiffs by analyzing video footage of the employees putting on and removing the protective gear. Tyson Foods argued that the class should not have been allowed because it relied on representative evidence and statistics that assumed all class members were identical to the average in order to calculate liability and damages. The Supreme Court rejected Tyson’s argument. The Court explained: “[i]n many cases, a representative sample is ‘the only practicable means to collect and present relevant data’ establishing a defendant’s liability.” See Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, 2016 U.S. LEXIS 2134 (Mar. 22, 2016).
Gates Sushi, USA, Inc. and GTN Inc., California based sushi restaurants, have agreed to pay over $460,000 in back wages and liquidated damages, and over $150,000 in additional civil penalties for minimum wage, overtime, and record keeping violations. The Department of Labor claimed that sushi chefs and other employees at the restaurants worked up to 90 hours a week but were not paid for all hours that they worked, were shorted overtime pay, and had pay deducted for taking short breaks. The Fair Labor Standards Act requires employers to pay covered, nonexempt workers at least the federal minimum wage of $7.25 for all hours worked, and time and a half overtime wages for all hours worked over forty in a week. See http: //www.dol.gov/ newsroom/releases/ whd/whd20160125-0
A Popeye’s Louisiana Kitchen franchise has agreed to pay $36,000 in order to resolve an age discrimination lawsuit. The lawsuit alleged that the restaurant’s general manager refused to hire three prospective employees because they were “too old.” According to the lawsuit, the job application asked them to identify their age, and during the subsequent interviews the general manager asked two of the applicants how old they were and then told them that they were too old to work for the restaurant. The Age Discrimination in Employment Act prohibits discrimination against individuals who are aged 40 or older. See EEOC v. Coatesville Chicken, LLC d/b/a Popeyes Louisiana Kitchen, Civil Action No. 15-5287 (PSD) (E.D. Pa.).
The EEOC recently filed a lawsuit alleging that a company subjected a female employee to a sexually hostile work environment and retaliated against her after she complained about the harassment and filed criminal charges against the persons she accused of harassment. The Complaint claims that the employee, who worked as a server and cashier, was regularly subject to sexually offensive comments and sexual harassment by the restaurant manager and several kitchen workers by touching her in a sexual manner. The harassment continued even after the plaintiff had complained to her supervisor. The plaintiff had her hours reduced and eventually was removed from the work schedule altogether after she filed criminal charges against the manager and kitchen staff. See EEOC v. Mayflower Seafood of Goldsboro, Inc., No. 5:15-CV-006360-BO (E.D.N.C. 2015).
The EEOC recently announced that a wellness center ithat specializes in cosmetic skin care treatments has agreed to pay $37,000 to settle a pregnancy discrimination lawsuit. The EEOC alleged that an employee at Shefa Wellness Center was fired only two days after she told the owner of the company that she was pregnant. The employer told the plaintiff that she had deceived the company by not informing the company of her pregnancy during her interview. This alleged conduct violated the Pregnancy Discrimination Act because employers may not subject women to discrimination because of their pregnancy. See EEOC v. CFS Health Management, Inc., No. 1:15-cv-00845 (N.D. Ga. 2015).
The EEOC recently announced that Kroger has agreed to pay $42,500 to settle a sexual harassment lawsuit. The EEOC lawsuit alleged that Kroger subjected one of its teenaged employees to sexual harassment and that Kroger also failed to take action to stop a male coworker from abusing the employee. The EEOC stated that the harassment started soon after the teenager was hired and continued throughout her employment with Kroger. The EEOC also claimed that Kroger did not take corrective action until the employee’s final complaint. See EEOC v. Kroger Company, No. 4:14-cv-00564-JLH (E.D. Ark.).
Brookdale Senior Living Communities, Inc. has agreed to pay $112,500 plus other relief to settle a disability discrimination lawsuit brought by the EEOC. The lawsuit alleged that Brookdale discriminated against an employee who suffered from fibromyalgia. She had requested a temporary modified work schedule, an ergonomic chair, and adjustments to the lighting in her office. Brookdale forced the employee to stay on leave until she could return without any restrictions or accommodations. She continued to request accommodations and was subsequently fired. Under the Americans with Disabilities Act, reasonable accommodations should be granted unless it would create an undue hardship for the employer. Additionally, an employer may not fire an employee for exercising her rights under the Americans with Disabilities Act. See EEOC v. Brookdale Senior Living Communities, Inc., No. 14-cv-02643-KMT (D. Colo.).
The U.S. Department of Labor recently filed a lawsuit against several Houlihan’s Restaurants franchises in New York and New Jersey. The complaint alleges that the company violated the minimum wage, overtime, and record-keeping requirements of the Fair Labor Standards Act. The lawsuit was filed on behalf of about 1,430 current and former Houlihan’s employees and seeks back wages, tips, and liquidated damages. The complaint alleges that the Defendants required the employees to pay tips into a tip pool, which was then used to pay employees for tasks completing custodial and kitchen work, and that Houlihan’s regularly kept part of the employees’ tips, creating an illegal tip pool. The complaint also alleges that employees would work off of the clock and that the employees were not compensated overtime when they split their work at more than one Houlihan’s location. Tip pools may only include those employees who customarily and regularly receive tips, and employers may not share in the tip pool themselves. See Perez v. A.C.E. Restaurant Group Inc., Case No. 1:15-cv-07149-JHR-AMD (D.N.J. 2015).
Baker Wellness Center has reportedly agreed to pay $30,000 plus other relief to settle a disability discrimination lawsuit filed by the Equal Employment Opportunity Commission. The EEOC alleged that the Wellness Center violated the Americans with Disabilities Act by discriminating against a diabetic employee because of her disability and retaliated against her for not reporting certain medical information that Baker illegally requested on its application form. The ADA prohibits employers from asking questions requiring medical information at the pre-offer stage of employment and also prohibits employers from taking adverse employment actions against employees because of their disability, request for reasonable accommodation, or complaints of discrimination. See EEOC v. Baker Wellness Center, Inc., 3:14-cv-00808 (M.D. La. 2015).
The Equal Employment Opportunity Commission announced that Arthur’s Restaurant and Bar, a fine dining steakhouse in Texas, will pay $20,000 to settle a pregnancy discrimination lawsuit that the EEOC brought against the restaurant. The EEOC alleged that Arthur’s fired cocktail server Jennifer Todd during her seventh month of pregnancy, when the company told her that it decided she should begin her maternity leave early. Arthur’s defended their actions by saying that they were acting out of concern for the health of the mother and baby. The employee was fired shortly after the restaurant’s owner made a comment to her that she was “starting to show.” This alleged conduct Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, which prohibits employers from firing an employee because of her pregnancy, or requiring an employee to take maternity leave while the employee is still able to work. See EEOC v. Restaurant & Bar Arthurs, Ltd., No. 3:14-CV-03033-N (N.D. Tex.).
National Tire and Battery has reportedly agreed to pay $22,500 to settle a national origin and religious discrimination lawsuit that the Equal Employment Opportunity Commission brought on behalf of one of NTB’s former employees. The EEOC’s suit alleged that the employee was harassed by coworkers because of his religion and national origin by calling him “Taliban,” “al-Qaeda,” “bin Laden,” and “terrorist” and by accusing him of making bombs. The allegations also assert that the former employee constantly complained to management about the harassment, but nothing was done to stop it. National origin and religious discrimination violates Title VII of the Civil Rights Act of 1964. See EEOC and NTW, LLC d/b/a National Tire and Battery, No. 15-cv-1681 (N.D. Ill.).
DAP Products Inc. is being sued by the EEOC for allegedly refusing to allow a capable employee with cancer to return to work. The lawsuit claims that the company discharged the employee from his position as a production operator because he had been diagnosed with and underwent surgery for prostate cancer. After taking a period of leave, the employee was able to return and perform his job, but DAP refused to allow him to return and forced him instead to take an extended leave. DAP later fired the employee for exceeding company leave limitations. This alleged conduct violates the Americans with Disabilities Act, which protects employees from discrimination based on their disabilities and requires employers to make reasonable accommodations for employees with known disabilities. See Equal Employment Opportunity Commission v. DAP Products, Inc., No. 3:15-cv-3423-D (N.D. Tex.).
Employer Calling Employees Ignorant, Lazy or Stupid Because Of Their Country Creates a Hostile Work Environment
The EEOC recently filed a lawsuit against Glaser Organic Farms, alleging that Glaser subjected its kitchen employees to a hostile work environment because of the employees’ national origin and race. The lawsuit also included a retaliation charge as a result of Glaser terminating an employee for filling a discrimination charge with the EEOC. The EEOC’s suit alleges that a kitchen manager created a hostile work environment for Hispanic employees by making disparaging comments such as “You Mexicans are ignorant, “Mexicans are lazy,” and “Mexicans are stupid.” Glaser fired the employee who filed a discrimination charge with the EEOC. This conduct violates Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race and national origin, and prohibits an employer from retaliating against employees who oppose this type of discrimination. See EEOC v. Glaser, No. 1:15-cv-23642 (S.D. Fla.).
The EEOC recently filed a lawsuit against Philips Lighting for firing an employee after Philips learned that the employee was the grandson of a former employee who had filed a lawsuit against the company. Philips hired Jake Lee Velasquez to work as a security guard at its lighting facility in Salina, Kansas. On the first day of work, Velasquez was fired after he was recognized to be the grandson of a former employee with a pending discrimination suit against the company. The EEOC says that Philips specifically referenced Velasquez’s grandfather in forbidding Velasquez from returning to work. Philips alleged actions violate Title VII of the Civil Rights Act of 1964, which prohibits retaliatory actions by employers that would discourage employees from complaining about discrimination. See Equal Employment Opportunity Commission v. Philips Lighting, No. 2:15-cv-9296 (D. Kan.).
The EEOC won its employment discrimination lawsuit against Consolidation Coal Company and its parent CONSOL Energy, Inc. The employee worked in Defendants’ West Virginia mine for over 35 years when a new hand-scanning method was installed to track when employees clocked in and out of work. The employee informed Defendants that using the hand-scanning technology would violate his sincerely held religious beliefs as an Evangelical Christian. In response, Defendants refused to offer any alternate means of tracking the employee’s attendance and time and told him that he would be disciplined and perhaps discharged if he did not use the hand-scanner. The employee was forced to retire. The jury found that Defendants had violated federal law by forcing a long-time employee to retire because they refused to accommodate his sincerely-held religious beliefs. The Court issued an order awarding $586,860 in lost wages, benefits, and injunctive relief. Defendants were also permanently enjoined from committing similar acts in the future in violation of Title VII. Employers must grant reasonable accommodations for employee religious beliefs that conflict with work requirements pursuant to Title VII of the Civil Rights Act of 1964, unless the reasonable accommodation would create an undue hardship on the employer’s business.
The Department of Labor’s Wage and Hour Division in Tampa Florida has found that Wei’s Hibachi Buffet, LLC violated the overtime, minimum wage, and record keeping violations of the Fair Labor Standards Act (“FLSA”). Hibachi Buffet did not pay servers a base hourly wage but instead forced them to work only for tips and room and board. Hibachi Buffet also failed to pay kitchen employees time and a half overtime wages for hours worked over 40 in a work week, as is required under the FLSA. The department also found that Hibachi Buffet did not maintain records for all hours that its employees worked. Hibachi Buffet has agreed to comply with the standards of the FLSA and to pay almost $100,000 in back wages and liquidated damages among twelve employees. See www.dol.gov/opa/ media/press/whd/WHD20151802.htm
SOCI Petroleum/Santmyer Oil Company has been charged by the Equal Employment Opportunity Commission of violating federal equal pay laws by paying a female employee less than the male predecessor in her position for performing substantially the same work. The EEOC’s Complaint states that in 2009 Lori Bowersock, who had worked for SOCI in Wooster, Ohio since 2006, replaced the former male human resources manager but was paid less than him. The Complaint also alleges that SOCI condoned derogatory remarks made to female employees and that its gave female employees less credit for their accomplishments than their male counterparts. These alleged actions violate the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964. EEOC filed suit in the U.S. District Court for the Northern District of Ohio Eastern Division. The EEOC seeks permanent injunctive relief to prohibit SOCI from future discrimination by providing equal pay to women for equal work, access to equal employment opportunities for women, lost wages, compensatory and punitive damages. See EEOC v. SOCI Petroleum/Santmyer Oil Co., Case No. 5:15-cv-02017-SL (N.D. Ohio).
Reserve Casino Hotel, a well-known hotel and casino in Colorado, was charged this week by the Equal Employment Opportunity Commission for failing to hire older and female candidates with equal or greater qualifications than males and young applicants who were hired in violation of federal age discrimination law. Reserve Casino Hotel bought the hotel in January 2011 and subsequently hired 240 employees. The EEOC alleges that Reserve Casino Hotel chose to hire males and younger applicants over their more highly qualified female counterparts and that it made comments about getting rid of the “gray hairs” and that former company’s workforce contained “too many old, fat, ugly, and gray-haired employees.” The EEOC’s investigation also revealed a marked disparity between female and male hires, and a notably greater number of applicants under forty years of age were hired over applicants over forty years of age. See EEOC v. RCH Colorado, Case No. 1:15-cv-02170-NYW (D. Colo.).
A hotel group has agreed to pay $45,000 to settle a religious discrimination charge filed by the EEOC. The hotel group was charged with refusing to provide a religious accommodation for one of their employees who had requested to have all Sabbaths off from work. Initially the request was honored until a change in management took place, after which her requests for religious accommodation were ignored. She was then fired. In addition to providing monetary relief to the employee, the hotel group will implement policies designed to prevent religious discrimination and conduct training on anti-retaliation and anti-discrimination laws. The hotel group will also be required to report any future requests for accommodation to the EEOC. See Equal Employment Opportunity Commission v. Landmark Hotel Group, LLC d/b/a Comfort Inn Oceanfront South, No. 4:12-cv-158 (E.D.N.C.).
A Lexington, North Carolina restaurant, The Silver Diner, has agreed to pay $25,000 to settle a sexual harassment and retaliation lawsuit. The EEOC filed the lawsuit after the restaurant allegedly subjected a waitress to a sexually hostile environment, such as the restaurant co-owner rubbing up against her. The restaurant limited the waitress’s hours and then fired her after she complained about the harassment. Title VII of the Civil Rights Act of 1964 prohibits sexual harassment in the workplace and retaliation for complaining about discrimination. In addition to paying the $25,000 settlement, the restaurant, under a five year consent decree, will conduct annual training that will focus on sexual harassment and retaliation. See Equal Employment Opportunity Commission v. Silver Diner, Inc., No. 1:12-CV-01002 (M.D.N.C.).
The EEOC has sued Extended Stay Hotels in U.S. District Court for the District of Maryland for allegedly paying their male employees higher wages than their female employees, even though they all performed equal work, in violation of the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964. Latoya Weaver worked as a guest services representative for five years at Extended Stay Hotels. Extended Stay Hotels, however, allegedly paid new male employees more than it paid Ms. Weaver, even though they allegedly performed equal work. The EEOC is seeking equitable relief that provides equal employment for the female employees as well as lost wages, punitive and compensatory damages, and other affirmative relief for the female employees who were affected by the wage discrimination. See EEOC v. HVM L.L.C., dba Extended Stay Hotels, No. 8:13-cv-01980 (D. Md.).
The EEOC has filed suit against Lifecare Medical Services in Cleveland, Ohio under the Americans with Disabilities Act. Lifecare Medical Services allegedly fired an employee because of his Multiple Sclerosis after he requested additional leave time for his disability. additional leave as a reasonable accommodation for his MS, but instead was issued disciplinary actions for absences related to his disability. In October 2010, Adair requested, as a reasonable accommodation, additional points under the company's no-fault attendance policy. Lifecare Medical Services responded to the request for accommodation by firing Adair on Oct. 13, 2010. See Case No. 5:13-cv-01447 (N.D. Ohio).
Can you believe that Ohio's Governor has proposed a 5% sales tax on attorney's fees? If enacted, this proposal could require employees like you to pay sales tax on any attorney's fees that they pay to enforce their employment rights. Additionally, you would have to pay sales tax when you need to hire an attorney for legal services such as to write a will or administer an estate, to adopt a child or get divorced, or to file for bankruptcy. I am a member of bar associations that have spoken against this legislation, such as the Ohio State Bar Association and the Cleveland Metropolitan Bar Association. We believe that it places an unnecessary burden on Ohio workers and impedes access to the legal system. Hopefully, the proposal will not become law. I will keep you informed of the status of this proposal. What can you do??? Contact your state representative and ask him or her to vote against a sales tax on legal services.
American Lawyer Media and Martindale-Hubbell™ recently selected me as a 2013 Top Rated Lawyer in Labor & Employment. American Lawyer Media is a leading provider of news and information to the legal industry.
With rare exception, it is illegal for an employer or supervisor to take a portion of a waiter or bartender's tips. According to the U.S. Department of Labor Wage and Hour Division, "tips remain the property of the employee that received them and the employee cannot be required to turn over his or her tips to the employer." U.S. DOL Fact Sheet #15A. Although tip pooling among certain employees is permitted, a "valid tip pool may not include employees who do not customarily and regularly receive tips, such as dishwashers, cooks, chefs, and janitors." U.S. DOL Fact Sheet #15.
Upon hiring an employee, some employers require the signing of an arbitration agreement. By agreeing to arbitration, the employee may waive the right to a jury trial even if the employer engages in illegal activities, such as discrimination, years later in the employment relationship. Instead, if the arbitration agreement is valid, any dispute would be resolved by an arbitrator, who often is a retired judge or other lawyer (rather than a jury of the employee's peers). An employee should consider any requirement to sign an arbitration agreement when weighing job offers.
The National Labor Relations Act protects workers from being fired or disciplined for discussing or complaining about work conditions with fellow employees. Although the Act generally governs union activities or efforts to form a union, Section 7 of the Act applies to non-union work places as well. It provides: "Employees shall have the right . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."
When terminating employees, the employer often asks the employee to sign a severance agreement, where the employee agrees to accept a nominal sum of money in exchange for releasing his or her right to sue for employment discrimination and other types of wrongful termination. If your employer asks you to sign a severance agreement, you should have an attorney review it and advise you of your rights.
An employee may file an Ohio common law claim for retaliatory firing after reporting a workplace injury to his or her employer, even if the employee had not yet filed for workers' compensation. In order to prevail, the employee must prove that the termination was retaliatory and that the employer lacked an overriding business justification for the firing. The Ohio Supreme Court's ruling is an extention of the rights provided in Ohio Revised Code Section 4123.90, which prohibits firing of workers in retaliation for filing workers' compensation claims. Even if the employee had not yet filed for workers' compensation, the law is now clear that the employee can pursue a common law action. Sutton v. Tomco Machining, Inc., 129 Ohio St.3d 153, 950 N.E.2d 938 (2011).
Pursuant to the Equal Pay Act of 1963, an employer cannot pay a woman less than a man (or vice-versa) for a job that requires equal skill, effort and responsibility and that is performed under similar working conditions. Exceptions are permitted when the payment is made pursuant to a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or any other legitimate business reason.
Stephan Voudris recently received the highest possible Peer Review Rating by Martindale-Hubbell in the Litigation Practice Area: an AV Preeminent Rating of 5.0 out of 5.0. Peer Review Ratings attest to a lawyer's legal ability and professional ethics in specific Areas of Practice, and reflects the confidential opinions of members of the Bar and Judiciary. The Legal Ability Rating reflects the professional ability in the area where the lawyer practices, the lawyer's expertise, and other professional qualifications. Peer Review Ratings are based on performance in specific areas, rated on a scale of 1-5; 1 being lowest and 5 being highest: Legal Knowledge, Analytical Capabilities, Judgment, Communication Ability and Legal Experience. The AV rating reflects that the lawyer meets the very high General Ethical Standards. AV Preeminent and BV Distinguished are certification marks of Reed Elsevier Properties Inc., used in accordance with the Martindale-Hubbell® certification procedures, standards and policies.
The Justice Department is taking action against a home mortgage lender for conduct that led to the housing crisis. In a civil fraud action filed in New York, the complaint alleges that Allied Home Mortgage Capital Corp. engaged in reckless mortgage lending, violated FHA mortgage insurance requirements, and lied about its compliance. U.S. ex rel. Belli v. Allied Home Mortgage Capital Corp., No. 11-05443 (S.D.N.Y.).
AT&T has settled a lawsuit by the EEOC accusing it of age discrimination for refusing to rehire tens of thousands of retired ex-employees. The consent decree requires AT&T to end any prohibitions against rehiring workers who left under several past retirement programs. EEOC v. ATT Inc., No. 09-07323 (S.D.N.Y.).
Past results in the above cases are not a guarantee of future results. The mere fact that a particular type of case was resolved for a particular amount should not be taken to indicate that all such similar cases would be resolved for a like sum. Each case is unique and dependent on the particular facts and circumstances of that case, the law in effect at the time the case was decided, the strengths and weaknesses of the case, the severity of the damages, the credibility of the witnesses, and numerous other case-specific factors that influence the settlement or verdict amounts.
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