FLSA Cases Keeping Sixth Circuit Court Occupied

In the past month, the Sixth Circuit has issued a number of FLSA decisions affecting employers and employees.  Last week, the Court rejected objections to a class action settlement on behalf of exotic dancers.  Jane Does 1-2 v. Déjà Vu Consulting, Inc., No. 17-1801 (6^th Cir. 6-3-19).  In another, the Court rejected claims for overtime compensation by certain Fire Battalion Chiefs on the grounds that they were exempt employees and were not entitled to extra standby pay.  Holt v. City of Battle Creek, No. 18-1981 (6^th Cir. 6-3-19).   In another, the Court affirmed the trial court judgment imposing liability for unpaid overtime compensation for employees of a small lumber company, but remanded for a redetermination of the amount of damages due which did not include time spent on bona fide meal breaks or commuting to and from work.  Secretary of Labor v. Timberline South, LLC, No. 18-1763 (6^th Cir. 5-29-19).  In that case, the Court also refined the test for enterprise coverage for employers which only purchase and use equipment locally, but that which is manufactured out of state.  It also rejected the employer’s good faith defense for seeking incomplete advice from a non-expert.  Finally, the Court affirmed the dismissal of a FLSA retaliation claim where the plaintiff failed to show that she had ever communicated any complaints about unpaid overtime.   Rogers v. The Webstraurant Store, Inc., No. 18-6229 (6^th Cir. 5-23-19). Her “vague, non-adversarial conversations about staying late are not sufficiently “serious occasion[s]” to be considered complaints under the FLSA.”


Déjà Vu Consulting involved the settlement of class claims (brought under both Civil Rule 23 and FLSA § 216(b)) that exotic dancers had been misclassified as independent contractors to avoid paying minimum wages  and been subject to illegal wage deductions.  It was similar to prior litigation which involved many of the same dancers and defendants.  Many, if not all, of the 28,177 class members had signed agreements with the defendants containing arbitration clauses with prevailing parties being entitled to recover attorney’s fees, etc.   Accordingly, the Court found it was not an abuse of discretion for the trial court to affirm the settlement reached in light of the risk to the plaintiffs of being compelled to individually arbitrate their claims and possibly be financially liable to the defendants.   The Court also found that formal discovery was not necessary in light of the extensive discovery conducted in the prior case involving many of the same type of claims and parties.  The settlement provided for both injunctive and financial relief.   The financial settlement of $6.5M was divided among $1M in cash payments, $4.5 attributed to a secondary settlement pool that could be claimed while working at the defendant clubs in the future and $900K to class counsel.  The dissent would have remanded for a recalculation of the counsel fees because she characterized a requirement of the settlement – that the plaintiff dancers work at a defendant club to receive a financial benefit from the secondary pool of monetary relief – as a “coupon” under Class Action Fairness Act which can only be considered for purposes of evaluating attorney’s fees based on the coupons redeemed instead of merely the pool of money set aside.


Holt involved claims for unpaid overtime and standby time by two Fire Battalion Chiefs, the second in command in the Fire Department hierarchy. Their primary job duties involved management and administration.   They received an extra 1.5 hours of pay for each day when they were on call during the night shift (in addition to overtime if they were actually called back to work) and were required to monitor the radio and pager while on call.   They could not leave town or drink alcohol when on call because they might be called to a fire scene.


In evaluating their exempt status, the Court rejected the plaintiff’s argument that a narrow reading of exemptions should be given in light of the Supreme Court’s prior Encino Motorcar decision. The trial court found that Battalion Chief’s primary duty was managerial in nature because they

were required to directly supervise lower-ranking officers and personnel, evaluate personnel, administer and enforce department policy, and coordinate the day-to-day operations of the department . . . .  the battalion chiefs were expected to “take charge and operate as the incident commanders at the scene of a fire.”  

Further, one “was ‘in charge’ of all suppression personnel and [the other] was ‘in charge’ or ‘oversaw’ the training division.  Approximately 27 lieutenants and captains directly reported to [one] who monitored their adherence to standards.  Moreover, Chief [Hausman] testified that if any fire fighter ‘had a problem[,]’ he or she would take it to plaintiff Holt.”  In addition,  although the trial “court recognized that Plaintiffs did not have independent authority to hire, fire, or suspend fire fighters, it credited certain testimony as showing that Plaintiffs’ “suggestions and recommendations as to hiring, firing, advancement, promotion or any other change of status of other employees were given ‘particular weight.’”  The FLSA regulations do “not require courts to ask whether an employee’s recommendations as to personnel decisions were accepted every single time—instead, it presents the question of whether those recommendations were given “particular weight,” which is precisely what the district court found.”


In light of their management exempt status, the Court decline to evaluate whether they were also exempt administrative employees and whether their standby restrictions were so onerous as to require extra compensation.


Timberline concerned a small lumber company that harvested and transported lumber only inside the state of Michigan and bought and sold only from Michigan companies.   The operations manager consulted with an accountant and believed that some the employees were exempt agricultural workers and the transportation were exempt under the Motor Carrier Exemption Act, but did not consult with an attorney or explain why the office employees would be considered exempt.   The employer kept track of working hours for the hourly employees, but not the salaried employees.  Following a DOL investigation, the DOL filed a lawsuit and was awarded summary judgment in the amount of $439,437.42 in back pay and liquidated damages for unpaid overtime owed to 50 employees.


The first issue to be considered was whether the employer was a covered enterprise under the FLSA.  The employer argued that its equipment, though manufactured outside of the state,  was purchased locally and, as the end user of that equipment, could not be considered for purposes of §203(s)(1)(A)(1) of the FLSA that covers employers which have “employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person.”  The Court ultimately adopted the test utilized by the Eleventh Circuit to evaluate whether equipment used by an employer to create its product constituted goods or materials under the FLSA enterprise test.   The Eleventh Circuit considered an amendment to the FLSA to include “materials” as well as “goods” and the exception for “goods” when the employer was the ultimate enduser of the goods.  It cautioned that

the same items could be goods in one case, materials in another, and neither goods nor materials in still another case, depending on the use of the item in the context of each case.  “Where a catering business uses the china plates at a client’s banquet, the plates count as part of the ‘materials’ necessary for serving a catered meal.  But, where a department store sells the same china plates as stand-alone items, the plates count as ‘goods’ for that retailer.”  Id.  Those same plates hung as decorations on the lobby wall of an accounting firm, however, constitute neither goods nor materials “because the plates have no significant connection to the business’s accounting work.”

                 . . .

Applying the definition of “materials” from Polycarpe, the logging and harvesting equipment used by Timberline’s employees plainly constitute “materials” because the equipment is necessary to cut down trees and transport the timber, which in turn have a significant connection to Timberline’s commercial activities of harvesting and selling timber.

The Court rejected the employer’s argument that this would effectively impose the FLSA on every business which purchases computers that are all manufactured overseas and pens that are manufactured out of state because the DOL has never sought such broad enforcement.  The Court also noted that Polycarpe specifically mentioned that incidental and internal consumption of an item would not satisfy the requirement that the materials be used in the employer’s commercial activity.  “[C]overage here is not premised on employees’ incidental use of office items; rather, it is premised on employees’ regular and recurrent use of logging and harvesting equipment that is used to carry out the company’s commercial activity of harvesting timber.”


The Court next rejected the employer’s Motor Carrier exemption because its drivers never left the State of Michigan even though they held CDLs and had DOT registration numbers:

The dispositive inquiry here is not whether Timberline’s employees held commercial driver’s licenses or whether its trucks had DOT registration numbers; rather, the dispositive inquiry is whether Timberline’s drivers transport goods in interstate commerce, thus rendering Timberline a motor private carrier.  49 U.S.C. § 13102(15); Vaughn, 291 F.3d at 904.  Courts have consistently interpreted this to mean that drivers must travel or transport the goods across state lines, or transport the goods in a “‘practical continuity of movement’ across State lines from the point of origin to the point of departure.”

Further, the employer failed to show that its timber was used by its buyers in interstate commerce.   On the contrary, it disclaimed knowledge of what use was made of the timber it sold.


Third, as for calculating back pay, the DOL had argued that employees’ regular rate include the compensation that they had received for their meal and commuting time – which otherwise is not considered working hours for purposes of the FLSA – because the employer traditionally and customarily paid employees for such time and the Portal-to-Portal Act referred to including such time of customarily compensated.  Neither the DOL nor the Court had made any effort to determine how many of the employees’ paid hours constituted such commuting or meal break time.  The Court rejected that argument:

Although the plain language of the Portal-to-Portal Act suggests that home-to-work commutes are deemed compensable if the employer has a custom or practice of compensating for such work, 29 C.F.R. § 785.34 explains that “ordinary travel from home to work (see § 785.35) need not be counted as hours worked even if the employer agrees to pay for it.”  And, 29 C.F.R. § 785.35 says plainly that “[n]ormal travel from home to work is not worktime.”  The reason is that the FLSA only requires overtime compensation for “actual work or employment,” Tenn. Coal, Iron & R. Co., 321 U.S. at 597, “[a]nd even where there is a contract, custom, or practice to pay for time spent in such a ‘preliminary’ or ‘postliminary’ activity, section 4(d) of the Portal Act does not make such time hours worked under the Fair Labor Standards Act, if it would not be so counted under the latter Act alone,” . . . “The general rule . . . is and always has been that the FLSA does not treat ordinary home-to-job-site travel as compensable.”  Kuebel v. Black & Decker Inc., 643 F.3d 352, 360 (2d Cir. 2011).  The same is true of “bona fide meal periods.”  29 C.F.R. § 785.19; see also Ruffin v. MotorCity Casino, 775 F.3d 807, 811-15 (6th Cir. 2015) (examining whether meal periods were compensable under the FLSA as “work”).

The Court remanded for the DOL and trial court to calculate how many hours the employees had been paid for commuting and meal breaks and to deduct that from the damages calculation.  Nonetheless, “Defendants may not use the amounts paid for those otherwise non-compensable work periods as an offset against the amounts owed.”


Fourth, the Court also rejected the employer’s argument that liquidated damages should not be awarded or should at least be reduced because it acted in good faith in consulting with its accountant about the agricultural exemption and in paying its employees well above the industry average.  An employer is required to show that it took affirmative steps to comply with the FLSA, but nonetheless violated it.   The employer did not provide sufficient information to the accountant about all of the employees and the accountant did not profess to be a FLSA expert.  Further, the employer knew that not all of the employees would qualify under the agricultural exemption and did not take reasonable steps to investigate the status of the other workers.  It did not even convincingly argue the agricultural exemption before the trial court and did not appeal that issue to the Sixth Circuit.  As for the generous compensation, that matter is irrelevant for purposes of FLSA compliance in the absence of good faith and reasonable grounds for non-compliance.


The plaintiff in Rogers had failed to demonstrate appropriate customer service skills and had been placed on a performance improvement plan.  She alleged that she had been terminating for complaining about unpaid overtime, but she failed to show that she had made any such complaints that could be objectively perceived as a complaint.  Her first “complaint” was really an apology for being late and asking whether she could attribute the 15 minutes that she worked past her shift the prior evening towards the 25 minutes that she had been late.  Her second “complaint” related to the tone of her voice when asking if she was supposed to work on her PIP outside of regular work hours.    Her third “complaint” related to notes that she sent her manager about how she was engaging in “self-reflection” outside of work hours and that she had been told to do this on “her own time.”  Indeed, he manager contacted her about whether she was working unauthorized overtime in order to give her back time that she had worked.  The plaintiff then admitted that she had not been recording all of her time working, but did not think that would be a concern.


Even if the allegations were true, the Court found that they could not constitute “complaint” under the FLSA that could support a retaliation claim. “The Supreme Court has said that the act of filing an FLSA complaint must contain ‘some degree of formality,’ such that a reasonable employer would understand it ‘as an assertion of rights protected by the statute and a call for their protection.’” However, “none of them even indicated that Rogers was complaining  or used any synonym or similar expression.”  Moreover, it is not clear that the employer could have realized that she was making a complaint.

While an employee need not explicitly mention the FLSA, she must do something to give fair notice that she is actually complaining about overtime or a lack of fair compensation, i.e. the core things the FLSA protects.  Kasten, 563 U.S. at 14.  Rogers’s vague, non-adversarial conversations about staying late are not sufficiently “serious occasion[s]” to be considered complaints under the FLSA.

                 . . . .

Not every grumble or “expression[] of concern or discomfort or frustration” by an employee constitutes an FLSA complaint.  Robinson v. Wal-Mart  Stores, Inc., 341 F. Supp. 2d 759, 763 (W.D. Mich. 2004).  Instead, an employee’s expressions  must be “sufficiently clear and detailed” to count as a complaint.  Kasten, 563 U.S. at 14.  Rogers’s allegations provide no information on how a mere tone of voice can be that clear.  Moreover, no required inference can save her lawsuit from that lack of clarity.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Unanimous Supreme Court Approves Limited Review of EEOC Conciliation Efforts

Yesterday, a unanimous Supreme Court held that the mandatory conciliation efforts required by Title VII before the EEOC files any lawsuit is subject to narrow federal court review.  Mach Mining v. EEOC, No. 13-1019 (U.S. 4-29-15).   However, because the discussions held during conciliation process are confidential and the EEOC has “extensive discretion to determine the kind and amount of communication with an employer is appropriate in any given case,” the court’s review is very limited and typically can be satisfied by an affidavit that the EEOC has described to the employer in the reasonable cause determination letter the alleged discrimination it has perpetuated and who has been harmed and that the employer had been given an opportunity to remedy the alleged discriminatory practice before the suit was filed.   Nonetheless, if the employer disputes that it had been sufficiently informed or given an opportunity to conciliate, the court may engage in limited factfinding.  In any event, the remedy for inadequate conciliation is only to order the EEOC to engage in conciliation.

According to the Court’s opinion, a woman filed a Charge alleging that the defendant employer had not hired her on account of her sex.  The EEOC conducted an investigation and concluded that reasonable cause existed that the employer had discriminated against her and a class of other female applicants.   In announcing its decision, the EEOC invited the parties to engage in informal dispute resolution and promised that an EEOC employee would soon contact them to begin the conciliation process. About a year later, the employer received a letter announcing that conciliation had failed and further efforts would be futile. The EEOC then filed suit.  In response, the employer asserted in its Answer that the EEOC had failed to satisfy the requirement that it first attempt to conciliate the dispute in good faith before filing suit.  When the EEOC moved for summary judgment, it argued that the court could only inspect the two letters sent to the employer, but the employer prevailed in arguing that the court should consider whether the EEOC engaged in sincere and reasonable efforts to conciliate.  On appeal, the Seventh Circuit reversed, finding no review or only cursory review was permitted. The Supreme Court reversed again.

Under Title VII, if during the EEOC’s investigation of a Charge of Discrimination, it determines that reasonable cause exists that unlawful discrimination occurred, it may file suit to eliminate and remedy the discriminatory practice.  However,

 it must first “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” §2000e–5(b). To ensure candor in those discussions, the statute limits the disclosure and use of the participants’ statements: “Noth­ing said or done during and as a part of such informal endeavors” may be publicized by the Commission or “used as evidence in a subsequent proceeding without the writ­ten consent of the persons concerned.” Ibid. The statute leaves to the EEOC the ultimate decision whether to accept a settlement or instead to bring a lawsuit. So longas “the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission” itself, the EEOC may sue the employer. §2000e–5(f)(1). [underlining added for emphasis).

The Court rejected the EEOC’s argument that the conciliation process was not subject to any judicial review because there is a rebuttal presumption that all agency actions are subject to judicial review.   In stronger terms, judicial review “is the norm.”  While Title VII gives the EEOC “abundant” discretion, that discretion merely limits the scope of review, not the fact of review.   The mandatory conciliation actions

neces­sarily involve communication between parties, including the exchange of information and views. . . . That communication, moreover, concerns a particular thing: the “alleged unlawful employment practice.” So the EEOC, to meet the statutory condition, must tell the employer about the claim—essentially, what practice has harmed which person or class—and must provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance. See also infra, at 13. If the Commission does not take those specified ac­tions, it has not satisfied Title VII’s requirement to at­tempt conciliation.

As for the scope of the judicial review, the Court rejected the employer’s argument that the conciliation process should be similar to the good faith bargaining process in the  union context and rejected the EEOC’s argument that only certain documents – such as the two letters sent to the defendant employer – could be reviewed.

 . . . But review of that kind falls short of what Title VII demands because the EEOC’s bookend letters fail to prove what the Government claims. Contrary to its intimation, those letters do not themselves fulfill the conciliation condition: The first declares only that the process will start soon, and the second only that it has concluded. The two letters, to be sure, may provide indirect evidence that conciliation efforts happened in the interim; the later one expressly represents as much. But suppose an employer contests that statement. Let us say the employer files an affidavit alleging that although the EEOC promised to make contact, it in fact did not. In that circumstance, to treat the letters as sufficient—to take them at face value, as the Government wants—is simply to accept the EEOC’s say-so that it complied with the law. And as earlier ex­plained, the point of judicial review is instead to verify the EEOC’s say-so—that is, to determine that the EEOC actually, and not just purportedly, tried to conciliate a discrimination charge. should be examined.

   . . . .

To begin, however, we reject any analogy between the NLRA and Title VII. The NLRA is about process and process alone. It creates a sphere of bargaining—in which both sides have a mutual obligation to deal fairly—without expressing any preference as to the substantive agreements the parties should reach. See §§151, 158(d).By contrast, Title VII ultimately cares about substantive results, while eschewing any reciprocal duties of good-faith negotiation. Its conciliation provision explicitly serves a substantive mission: to “eliminate” unlawful discrimination from the workplace. 42 U. S. C. §2000e– 5(b). In discussing a claim with an employer, the EEOC must always insist upon legal compliance; and the em­ployer, for its part, has no duty at all to confer or exchange proposals, but only to refrain from any discrimination. Those differences make judicial review of the NLRA’s duty of good-faith bargaining a poor model for review of Title VII’s conciliation requirement.

In addition, Title VII gives the EEOC wide flexibility.  It need only “endeavor” to “informally” conciliate.  Moreover, a NLRB-type review would violate the confidentiality rules which govern conciliation.

In practice, the EEOC typically satisfies its obligation to give notice to the employer of the allegations in the reasonable cause determination letter. After that,

the EEOC must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory prac­tice. Judicial review of those requirements (and nothing else) ensures that the Commission complies with the statute. At the same time, that relatively barebones review allows the EEOC to exercise all the expansive discretion Title VII gives it to decide how to conduct concil­iation efforts and when to end them. And such review can occur consistent with the statute’s non-disclosure provi­sion, because a court looks only to whether the EEOC attempted to confer about a charge, and not to what hap­pened (i.e., statements made or positions taken) during those discussions.

A sworn affidavit from the EEOC stating that it has performed the obligations noted above but that its efforts have failed will usually suffice to show that it has met the conciliation requirement. . . . If, however, the employer provides credible evidence of its own, in the form of an affidavit or otherwise, indicating that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a court must conduct the factfinding necessary to decide that limited dispute.  . . . Should the court find in favor of the employer, the appro­priate remedy is to order the EEOC to undertake the mandated efforts to obtain voluntary compliance.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Wal-Mart Pays $363,419 to Settle EEOC Sexual Harassment Lawsuit Involving Akron Store

Yesterday, the EEOC announced that it had resolved a sexual harassment lawsuit it filed almost a year ago against Wal-Mart Stores East, L.P in federal court in Akron concerning the sexual harassment and termination of an intellectually disabled employee.  According to the EEOC, Wal-Mart violated Title VII when a co-worker sexually harassed the eleven-year employee of an Akron store  for several years with the knowledge of management.  The disabled employee was fired shortly after she finally complained to management.   The settlement payment consists of $295K in compensatory damages (just under the 1991 Civil Rights Act cap) and full back pay.

The settlement also requires Wal-Mart to provide sexual harassment training to its managers and human resources managers at that Akron store. “The training will include instruction on how to prevent the sexual harassment of intellectually disabled employees, including by working with job coaches and vocational counselors who interact with Wal-Mart on behalf of such employees. Also as part of the settlement, the company must post a notice in the workplace explaining employee rights and employer obligations under Title VII, and it must submit reports to the EEOC during regular intervals throughout the decree's three-year duration.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Settles Sexual Harassment $1.45M Lawsuit Against JPMorgan Chase Arising from Polaris Call Center

Yesterday, the EEOC announced that it had settled a sexual harassment lawsuit it filed in September 2009 in federal court in Columbus (Civil Action 2:09-cv-00864)  against JPMorgan Chase arising out of an alleged sexually hostile work environment at the Polaris call center.  The $1.45M paid by the Bank will be "allocated among the 16 female mortgage bankers who worked at” the Polaris office and was divided between back wages and compensatory and punitive damages.  According to the EEOC, the Bank “maintained a sexually hostile work environment towards its female mortgage bankers,” which consisted of “sexually charged behavior and comments from supervisory staff and participating mortgage bankers.”  In addition, the EEOC also alleged that “female mortgage bankers who did not embrace and participate in these circumstances became ostracized and suffered economic consequences by being deprived of lucrative sales calls, being deprived of training opportunities and being denied other benefits of employment.”

The court’s docket reflects that extensive discovery was conducted and the summary judgment motions filed by both sides were denied.

The consent decree resolving the case provides that it does not constitute an admission by the Bank.  It enjoins the Bank from creating or maintaining a sexually hostile work environment and from retaliating against any employee who complains about sexual harassment.   For the next two years, the Bank is required on a quarterly basis to:  

·        give notice to the Commission of the institution of any judicial or administrative proceeding (including the filing of a  charge or complaint with the Ohio Civil Rights Commission) against Defendant, wherein the person or entity instituting the  proceeding alleges sex-based/sexual harassment or other sex discrimination arising from alleged conduct involving Mortgage Bankers at the Consumer Direct Sales department of Defendant’s Polaris, Ohio facility or any successor facility where Defendant’s Ohio-based Mortgage Bankers in its Consumer Direct Sales department may relocate, and include a copy of the complaint or charge.

·         . . . submit written reports to the Commission’s Baltimore Field Office,  . . .  regarding all written or oral complaints of sex/sexual harassment or other sex discrimination made to Defendant’s Human Resources Department or Corporate Employee Relations Department, whether sufficient to state an actionable claim under Title VII or not, and any corrective action taken in response to the complaints. Such reports shall contain the following: the dates and time period pertinent to the complaint; the allegations of sex/sexual harassment or other sex discrimination, the full name, job title, work address, last known home address, and last known home telephone number of any complainant; the full name, job title and work address of any persons who received any complaints; if other than the complainant, the full name, job title, work address of any person alleged by a complainant to have been a victim of sex discrimination or sex based harassment, and the full name, job title, work address, and professional relationship to the complainant or alleged victim of the person or persons whose conduct is the subject of a complaint. . . .

The Bank also agreed to develop by June an extensive call data retention system so that assignments of sales calls could be accessed and analyzed to ensure that they are being equitably distributed among the mortgage bankers. These records, among other things, must also reflect each employee’s supervisor and manager each week.  The Bank is required to maintain and preserve the records for three years after they are created and to produce them annually or upon request to the EEOC (until March 2016).

The Bank is also required by the consent decree to provide two hours of training on sexual harassment, discrimination and retaliation to “Supervisors, Managers, and Directors of Mortgage Bankers within the Consumer Direct Sales department at its Polaris facility” by June and again within the following year.  This training shall be provided within 60 days to individuals hired, transferred or promoted into such positions as well.  The EEOC must review the training materials in advance and must be annually given a list of everyone who attends.  The Bank also agreed to continue its past practice of training its Human Resources employees.

 The consent decree also requires the Bank to post a notice for the period of the decree essentially outlining every employer’s obligations under Title VII.

 NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit: Employers Cannot Shorten FLSA/EPA Limitations Periods in Employment Agreements or Waivers

Yesterday, a unanimous Sixth Circuit reversed an employer’s summary judgment in a claim for unpaid overtime and unequal wages under the Fair Labor Standards Act (FLSA) and Equal Pay Act (EPA). Boaz v. FedEx Customer Information Services, Inc, No. 12-5319 (6^th Cir. 8-6-13).  First, the Court found that the employment agreement could not shorten the statutory limitations period from 2-3 years to 6 months because it constituted an invalid waiver of her FLSA and EPA claims.    Unlike other statutory claims, private settlement agreements or waivers of FLSA and EPA claims are not enforceable. Second, the Court found material factual disputes on the merits of her claims for unpaid overtime and unequal pay.  More interestingly, the Court made some observations about the perceived anti-competitive affects of various types of discrimination.

The plaintiff filed suit in April 2009 alleging that she had been paid less than a male co-worker performing the same job and that she had been denied overtime pay for jobs she held more than six months earlier (when she had been promoted to a new job).  “The statute of limitations for the FLSA is two years for non-wilful violations and three years for wilful ones. 29 U.S.C. § 255(a).”   As long ago as 1946, the Supreme  Court had held that “employees may not, either prospectively or retrospectively, waive their FLSA rights to minimum wages, overtime, or liquidated damages. “  The plaintiff’s employment agreement in this case provided in relevant part that:

 

To the extent the law allows an employee to bring legal action against Federal Express Corporation, I agree to bring that complaint within the time prescribed by law or 6 months from the date of the event forming the basis of my lawsuit, whichever expires first.

The employer argued that employers are allowed to shorten the limitations period for claims brought under other statutes, like Title VII, and should be able to shorten the limitations period for claims brought under the FLSA.   However, the Court rejected that argument because, unlike the FLSA, employees are permitted to privately settle and waive their claims under Title VII.  In addition, in a startling observation, the Court stated:

Second—and relatedly—an employer that pays an employee less than minimum wage arguably gains a competitive advantage by doing so. See Citicorp Indus. Credit, Inc. v. Brock, 483 U.S. 27, 36 (1987). An employer who refuses to hire African-Americans or some other racial group does not. The Court’s rationale for prohibiting waiver of FLSA claims is therefore not present for Title VII claims.

The employer next argued that employees are allowed to waive their right to a judicial forum under the FLSA by signing arbitration agreements because the prohibition against private waivers has been held to only apply to substantive rights and not procedural ones.  However, the Court distinguished this precedent by noting that waiving the judicial forum still allows for the effective vindication of the employee’s claim, while the shortened limitations period in the plaintiff’s employment agreement “at issue here does the opposite.”  Therefore, because the limitations provision in the employment agreement operated as a waiver of her claims, “it is invalid.”

The Court held that this reasoning applied with equal force to the plaintiff’s EPA claims because Congress amended the FLSA in 1963 to include the EPA.   Moreover, in contrast to what the Court said (above) about the anti-competitive effects of Title VII, it made the following observation about the EPA:

Second, the Supreme Court’s rationale for barring waiver of FLSA claims appears fully applicable to claims under the Equal Pay Act. An employer who pays women less than a lawful wage might gain the same competitive advantage as an employer who pays less than minimum wage. Indeed the Court has said that “[t]he whole purpose of the [Equal Pay Act] was to require that the[] depressed wages [of women] be raised, in part as a matter of simple justice to the employees themselves, but also as a matter of market economics[.]” Corning Glass Works v. Brennan, 417 U.S. 188, 207 (1974).

The Court also rejected other potential bases to affirm the summary judgment.  For instance, the Court refused to credit the plaintiff’s deposition admission that she had been an exempt employee:

An employee’s subjective belief that her position was exempt from the FLSA, however, does not mean the position was exempt as a matter of law. Cf. Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 300–01 (1985) (witnesses’ testimony that they were volunteers was not dispositive of whether they were actually employees under the FLSA). Were it otherwise, an employer could obtain waivers of FLSA  claims  merely by having its employees sign a form stating that they are exempt. FedEx is therefore not entitled to summary judgment on this ground.

The Court found material factual disputes in the employer’s remaining arguments about comparative employees and affirmative defenses.  Therefore, the case was remanded back to the trial court.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Announces Cleveland Employer to Pay $700K and Hire 40 Women

Yesterday, the EEOC announced an agreement with a Cleveland manufacturer to settle a class action lawsuit which alleged that the employer systematically discriminated against women by failing to hire them, permitted harassment against the women who were hired and failed to comply with federal document retention requirements concerning job applicants and new employees.  As part of the settlement,  Presrite Corporation will pay $700,000, which will be distributed among a class of women who sought and were denied jobs at the company.   In addition, the company is required to hire no fewer than 40 women identified by the EEOC during the claims process.  These women will receive priority consideration and jobs before any current male applicants. The company will also be required to make periodic reports to the EEOC, conduct mandatory training, and improve document retention practices to include electronic data.

According to the EEOC, the company regularly rejected female applicants in favor of less-qualified male applicants at its three Ohio plants.  There were also incidents showing that women who were hired were harassed on the job.  Finally, the company failed to keep copies of applications and other employee data required by federal law.   The EEOC alleged that the company “failed to produce more than a thousand employment applications for persons the company hired and failed to maintain accurate or complete data about applicants. As a result, the EEOC said, it was unable to identify by name all of the female applicants who were unlawfully denied hire.”

EEOC Announces $260K Settlement with Ohio Employer for Wage Discrimination

Yesterday, the EEOC announced that it had settled for $260,000 a wage discrimination lawsuit filed at Case No. 5:09CV01762 in federal court in Akron on behalf of two women under Title VII and the Equal Pay Act with Health Management Group, Inc. The lawsuit alleged that the employer had paid the two women less than a male employee performing substantially similar work in violation of federal law. "In addition to monetary relief, the consent decree settling the suit provides for training for all of HMG's employees, managers, and supervisors on employee rights and employers' obligations under the Equal Pay Act and Title VII and requires HMG to post an anti-discrimination notice to all employees. The decree also requires that HMG revamp its non-discrimination policies; implement discrimination complaint procedures; maintain records regarding complaints of discrimination received by HMG representatives; promote manager and supervisor accountability with regard to HMG's anti-discrimination policies; and provide annual reports to the EEOC during the decree's 30-month term."

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Settles Class Action Reverse Race Discrimination Lawsuit for $246.5K

On Friday, the EEOC announced that it was settling a class action reverse race discrimination lawsuit brought in federal court in Indianapolis, Indiana against a discount clothing retailer for $246.5K. According to the press release, "Dots' Merrillville, Ind., clothing store denied jobs on a systemic basis to white applicants since at least April 1, 2007. During that time, the EEOC contended, Dots regularly hired black entry-level applicants for sales positions, but excluded white applicants who were equally or better qualified." In addition,

The consent decree settling the suit provides that the settlement proceeds will be distributed to 32 class members. The decree also requires Dots to notify class members of open sales positions for a period of 18 months and to offer them interviews if they are still interested in employment with the company. Dots agreed to cease any further discrimination against white applicants and not to retaliate against applicants or employees who exercise their rights to complain about discrimination or assist in an investigation or discrimination-related proceeding. Dots will post a notice of non-discrimination at each of its facilities in Indiana and Illinois under its District 11 and train its managers and employees involved in the hiring process. Dots will also report on all hiring at its Merrillville location for a three-year period and will submit reports to EEOC detailing its compliance with the decree

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC’s Cleveland Office Announces $300K Settlement of Sexual Harassment Lawsuit

On Friday, the EEOC announced that its Cleveland, Ohio district office had settled for $300,000 a sexual harassment lawsuit brought in federal court against Dave's Supermarket, a 13-store grocery chain with 1500 employees. According to the EEOC's press release, a former meat department manager made repeated and unwanted sexual advances to female employees, "and that upper management, aware of his behavior, failed to stop it." In addition, the EEOC alleged that "the sexual harassment included an incident during" where the manager "exposed himself to a newly hired female employee," who complained to upper management "about the incident, but that management did not investigate or discipline" the manager. However, according to the EEOC, the market finally fired the manager after another female employee also complained that he sexually harassed her as well.

In addition to the monetary relief for four female employees, "the two-year consent decree settling the suit provides for mandatory training of all staff on sexual harassment and the company's obligations under Title VII, with an emphasis on the definition of sexual harassment, maintaining a harassment-free workplace, and the laws prohibiting unlawful retaliation. The decree also requires management and/or supervisor accountability concerning sexual harassment and posting of a notice to inform employees about the lawsuit and provide the EEOC's contact information."

Insomniacs may read the full EEOC press release on its website.

In a similar announcement, the Chicago regional office of the EEOC announced a $195,000 settlement of a national origin harassment federal lawsuit (EEOC v. Fireside West, LLC d/b/a Hilton Lisle/Naperville, No. 09-cv-5979) involving an executive chef’s derogatory references to two Hispanic members of the kitchen staff. Like the Cleveland lawsuit, there was also a three-year consent decree.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Announces Consent Decree Settling Sex Discrimination and Retaliation Suit With Two West Virginia Employers and Obtaining $115K for Three Women.

Yesterday, the EEOC announced that it had reached a $115,000 settlement in a sex discrimination lawsuit it had filed against West Virginia employers, Brooks Run Mining Company and staffing firm Neal & Associations, in federal court (Case No. 5:08-CV-0071). In its lawsuit, the EEOC had alleged that the defendant employers violated Title VII when female “security guards as a class were discriminated against because of their sex. The EEOC asserted that once the women complained about sexual harassment, they were prevented – either by layoffs or transfers – from working at the Brooks Run Cucumber mine site, although security jobs were available to men.”

According to the EEOC, “the three-year consent decree settling the suit provides for a monetary settlement to three women” who were “former security guards at the Cucumber mine site. In addition to monetary relief, the decree provides for significant remedial relief, including promoting supervisor accountability. The settlement also requires yearly training for all management staff on employee rights and employer obligations under federal and state anti-discrimination laws, with an emphasis on sex discrimination.”

Insomniacs can read the full press release at http://www.eeoc.gov/press/6-11-09a.html.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Pittsburgh Hospital Agrees to Pay $100,000 to Settle ADA Lawsuit Brought by EEOC.

Yesterday, the EEOC announced that “a Pittsburgh hospital has agreed to pay $100,000 and furnish other equitable relief to settle a disability discrimination lawsuit brought by” the EEOC which “had charged the hospital with firing an employee because she had cancer.” The lawsuit suit was filed at Civil Action No. 08-1358, filed in U.S. District Court for the Western District of Pennsylvania. According to the EEOC’s lawsuit, the plaintiff “needed a reasonable accommodation for her disability after she had surgery for cancer and underwent chemotherapy. [She] was a longstanding employee of LifeCare Hospitals of Pittsburgh or its predecessor and had a good performance record.”

According to the EEOC’s allegations, the defendant employer “initially provided a reasonable accommodation to” the plaintiff. However, “in about August 2007 the regional director of finance suddenly stopped accommodating [her] disability and demanded that she return to work full-time with no restrictions.” After she “returned to work full-time, the supervisor discriminated against her because of her disability, including substantially increasing her workload, removing her full-time staff assistant, and subjecting her to unwarranted work scrutiny.” Ultimately, “the hospital fired [the plaintiff] because of her disability.”

The EEOC announced that “the consent decree resolving the lawsuit prohibits the hospital from engaging in disability discrimination and retaliation. As part of the settlement, the hospital will also train all employees regarding the ADA’s prohibitions against disability discrimination. LifeCare did not admit liability in the consent decree, which is pending judicial approval. . . . During Fiscal Year 2008, disability discrimination charges rose to 19,453 -- an increase of 10 percent from the prior fiscal year and the highest number of disability bias charges filed with the EEOC in 14 years.”

Insomniacs can read the full press release at http://www.eeoc.gov/press/5-12-09.html.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Announces $50,000 Settlement with Auto Parts Retailer Over Failure to Hire Applicant with Cerebral Palsy Who Successfully Completed Internship.

Yesterday, the EEOC announced that it had reached a settlement with an auto parts retailer – Advance Stores Company, Inc. – where the store agreed to pay $50,000 and “to provide training on an annual basis to all of its managers, supervisors, and employees in its Norton, Va., store; post an employee notice regarding this settlement; and report any allegations of disability discrimination by job applicants at the company’s Norton location to the EEOC.” According to the allegations made in the EEOC’s lawsuit, the store violated the Americans With Disabilities Act when it refused to hire an applicant for a part-time sales position “because he has cerebral palsy. . . . The EEOC said that [the applicant] had successfully completed an internship as a salesperson at Advance Auto’s Staunton, Va., store through a training program in which he participated. The EEOC further charged that despite Sanders’ qualifications and experience obtained through the internship, Advance Auto did not hire him but did hire at least one other person who was less qualified than Sanders.” (EEOC v. Advance Stores Company, Inc. d/b/a Advance Auto Parts, Civil Action 02-08CV00011).

Insomniacs can read the full press release at http://www.eeoc.gov/press/3-9-09.html.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

Sixth Circuit: Union’s Waiver of 30-Year Retired Employee’s Benefits Without Notice or Consent Protected Assets of Bankrupt Employer.

Today, the Sixth Circuit issued a decision in which it held that the statutory and severance claims of a 30-year retired employee of bankrupt LTV Steel had been waived by the employee’s former union even though he received no notice of the waiver, never consented to it, and had been explicitly excluded from receiving compensation under the waiver agreement. McMillan v. LTV Steel, Inc., No. 07-4370. Although federal law is pretty clear that unions no longer represent retired employees in negotiations, the employee was deemed to have waived that compelling legal argument when he failed to raise it in support of his claims before the bankruptcy or district courts. The Sixth Circuit also refused to disturb the district court’s conclusion that the employee’s actual claim for pension and 401(k) benefits was with the Pension Benefit Guaranty Corporation (PBGC) since it had assumed control of the employer’s retirement benefits when it filed for bankruptcy.

According to the court’s opinion, the plaintiff retiree worked for 30 years in a UWSA unit for LTV Steel. The UWSA and LTV had negotiated both a defined contribution plan (i.e., a 401(k) plan to which both the employee and employer contributed) and a defined benefit plan (i.e., pension). In 1999, the UWSA and LTV reorganized the retirement benefits to eliminate future pension contributions (and limit future payouts to a $10,000 lump sum), and to transfer employer contributions from the 401(k) plan to the pension plan. About a year later, LTV filed for bankruptcy protection, issued a WARN notice a few months later and eventually permanently closed the retiree’s plant. The plaintiff retiree worked at reduced pay at other LTV plants, but remained out of work beginning in August 2001. Under a USWA negotiated agreement, he had the option to transfer (without seniority) to another plant, to remain on layoff status, to accept retirement or to take severance. The plaintiff elected to retire in December 2001 and take his $10,000 pension lump sum. While the opinion is ambiguous on this point, this amount was apparently never paid.

In the meantime, LTV eventually sold all of its assets in December 2001, but the sale proceeds were only sufficient to pay secured creditors and not to pay administrative claims or unsecured creditors, such as the plaintiff and other retirees. Accordingly, PBGC assumed LTV’s pension obligations. The UWSA then renegotiated the CBA with LTV and eliminated, among other things, the previously promised severance pay. Nonetheless, six months later, the USWA filed an administrative claim with the bankruptcy court for LTV’s failure to pay severance pay, WARN Act liability, retiree benefits, etc. The UWSA settled its claim with LTV in December 2003 for $15M, but the settlement expressly did not benefit retirees such as the plaintiff who worked at his original plant or were laid off prior to November 2001. In the 2003 settlement, UWSA waived any and all other claims it could make arising out of any bargaining agreement. The plaintiff received no notice of the USWA administrative claim and did not receive notice of, or consent to, the 2003 settlement.

Nonetheless, the plaintiff filed his own administrative claim against LTV in 2002 for over $300,000 (for unpaid wages, pension benefits and 401(k) payment) and it was denied by the bankruptcy court. The plaintiff eventually reached an unsecured settlement with Copperweld -- one of LTV’s subsidiaries -- for the full amount, but retained his right to pursue his claim against LTV. In 2004, he filed another administrative claim for over $40,000 for his unpaid 401(k) contributions, severance pay and other benefits.

The bankruptcy court found that the 401(k) contributions were transferred to the pension fund in 1999 and were now being administered by PBGC and not LTV. The Sixth Circuit agreed that the plaintiff should be limited to asserting a claim against the PBGC. In addition, the bankruptcy court found that collateral estoppel from the Copperweld settlement estopped the plaintiff from pursuing the same amount from LTV, despite his reservation of rights to pursue claims against LTV. The Sixth Circuit found that the plaintiff’s claims were not entitled to administrative priority status because the liability arose before LTV filed for bankruptcy and did not relate to retiree healthcare benefits.

Finally, his claim for severance benefits and WARN Act payments were deemed waived by the USWA in 2003 even though he received no proceeds from that $15M settlement, received no notice of the claim or settlement, and never consented to the settlement. Indeed, the law is clear that unions cannot negotiate on behalf of retirees because they are no longer union members. However, even though the bankruptcy court erroneously concluded that the USWA was acting as his agent, the plaintiff never raised the issue of agency to the bankruptcy or district courts, but rather, focused on his lack of notice and consent to the settlement. Therefore, the Sixth Circuit determined that he could not belatedly raise the agency argument even if the lower courts had erred. Moreover, if the UWSA had been his agent, it had authority to waive his WARN Act and severance pay claims on his behalf – even without notice or consent. Therefore, those claims were also dismissed.

Insomniacs can read the full court decision at http://www.ca6.uscourts.gov/opinions.pdf/09a0040p-06.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Hotel Chain to Pay $370K to Settle Same-Sex Harassment Lawsuit Filed by EEOC.

Last week, the EEOC announced that a hotel employer had agreed in a consent decree to settle a same sex-harassment lawsuit filed in federal court in Seattle, Washington, by, among other things, paying $370,000 (to be divided among the four-teenaged victims), providing anti-discrimination training for managers, supervisors and employees at the hotel resort, establishing policies and procedures to address sexual harassment issue, reporting any future discrimination complaints to the EEOC and allowing the EEOC to monitor the work site for the next three years. In its lawsuit, the EEOC alleged that the employer had failed to stop the male hotel manager from sexually harassing teenaged male employees when he “repeatedly subjected young male employees between the ages of 17 and 25 to unwelcome touching of a sexual nature, comments about their physical appearance, and sexually charged situations.”

The defendant was “WorldMark by Wyndham (formerly Trendwest) [which] employs several thousand individuals and is a wholly owned subsidiary of Parsippany, N.J.-based Wyndham Worldwide Corporation (NYSE:WYN), the world’s largest hotel franchisor, vacation ownership company and vacation exchange network, which includes chains like Wyndham Hotels and Resorts, Ramada Inn, Howard Johnson, and others.”

Insomniacs can read the full EEOC press-release at http://www.eeoc.gov/press/10-23-08a.html.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Announces that Wal-Mart Will Pay $300K to Applicant with Cerebral Palsy

The EEOC announced last week that “Wal-Mart Stores, Inc. will pay $300,000 to a Hardin, Mo., man to settle a disability discrimination lawsuit.” The EEOC alleged in its lawsuit (EEOC v. Wal-Mart Stores, Inc., No. 04-cv-0076 (W.D. Mo)) “that Wal-Mart refused to hire Steve Bradley, who has cerebral palsy and uses crutches or a wheelchair for mobility, when he applied for employment at its Richmond, Mo., store in 2001. At the time, the retail giant was preparing to open a new 24-hour Supercenter and was conducting mass hiring. Bradley applied for any available job, but during his interview he was questioned about his ability to work using his wheelchair and was told he was “best suited” for a greeter position. Ultimately, the company refused to hire him,” which the EEOC alleged violated the ADA.

In the proposed consent decree, which still requires court approval, the EEOC explained that “Wal-Mart agreed to pay $300,000 to Bradley, provide ADA training to managers at its Richmond store, notify job applicants about the decree and inform several Kansas City-area job service agencies that that the company seeks to employ qualified individuals with disabilities.”

“The settlement followed a February 2007 decision by the U.S. Court of Appeals for the Eighth Circuit (EEOC v. Wal-Mart Stores, Inc., No.06-1583 [8th Cir.]) that reversed a district court ruling dismissing the case. Wal-Mart had claimed that Bradley would pose a safety risk to himself or customers if he worked at the store using a wheelchair or crutches. In addition to finding that the EEOC presented sufficient evidence for the case to go to trial, the appeals court also held, . . . that an employer bears the burden of proof if it claims that a disabled employee or applicant poses a “direct threat” to the health or safety of himself or others.”

Insomniacs can read the full press release at http://www.eeoc.gov/press/4-17-08.html.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Affirmative Action Employer Agrees to Pay $1.5M to Settle OFCCP Allegations of Discriminatory Hiring Process

Today, the U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) announced that Dallas-based Vought Aircraft Industries Inc. would be settling “allegations of hiring discrimination based on race and gender and agreed to pay $1.5 million in back wages to 1,045 applicants. . . . OFCCP investigators found that Vought's hiring process disproportionately eliminated African American and Asian males, as well as all females, applying for the assembly trainee/aircraft assembly beginner jobs. OFCCP concluded that two steps in Vought's hiring process — an application screening and a test — were primarily responsible for the discrimination. Under the terms of the consent decree, Vought will pay the 1,045 rejected applicants $1,377,500 in back pay with interest. The company also will pay about $70,000 for applicants interested in participating in a four-week aircraft assembly training program, and from that program 35 applicants will be hired into assembly trainee/aircraft assembly beginner positions. Additionally, in lieu of retroactive seniority salary, the new hires will be paid $1,500 each.”

According to the OFCCP, “Vought, a manufacturer of aircraft parts and auxiliary equipment contracts with the U.S. Department of Defense, has discontinued its use of the test and modified its screening procedures, and will undertake extensive self-monitoring measurements for two years to ensure that all hiring practices fully comply with federal law. Additionally, the company will ensure compliance with recordkeeping requirements.”

The OFCCP is an agency within the United States Department of Labor's Employment Standards Administration and enforces Executive Order 11246 and other laws that prohibit employment discrimination by federal contractors. The agency monitors contractors to ensure that they provide equal employment opportunities without regard to race, sex, color, religion, national origin, disability or veteran status.

Insomniacs can read the OFCCP’s full press release at http://www.dol.gov/opa/media/press/esa/esa20080418.htm.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Announces $505K Settlement for Sexual Harassment of Teenagers by Restaurant Supervisor.

Yesterday, the EEOC announced that a Colorado “McDonald’s restaurant franchise will pay $505,000 and provide significant remedial relief to settle a sexual harassment lawsuit” brought by the EEOC “on behalf of a class of young female employees, including teens.”

“The EEOC’s suit, Civil Action No. 06-cv-01871-MSK-CBS, was filed in U.S. District Court for the District of Colorado against JOBEC, Inc., a management company, and the interrelated corporations Colorado Hamburger Company, Inc. and Farmington Hamburger Company, Inc., who operate McDonald’s franchises in Durango and Cortez, Colo., and Farmington and Aztec, N.M. “ The Commission’s suit alleged that Tiawna Shenefield, now known as Tiawna Jacobson, Brandi Michal and a class of females, many of whom were 15 to 17 years old, were subjected to egregious sexual harassment in the workplace by their male supervisor. The harassment allegedly included the supervisor biting the breasts and grabbing the buttocks of the class members, making numerous sexual comments, as well as offers of favors in exchange for sex. Such alleged conduct violates Title VII of the Civil Rights Act of 1964.”

“Under the terms of the consent decree resolving the case, the defendants will pay the two named victims and their attorney, Lynne Sholler, of Durango a total of $450,000 for compensatory damages and attorney fees. An additional $55,000 will be distributed to two other class members represented by the EEOC. The decree also provides for significant non-monetary relief, including letters of apology to the victims; training on sex discrimination in the defendants’ Colorado and New Mexico facilities; posting notices of non-discrimination in all of the defendants’ workplaces; and an injunction prohibiting discrimination and retaliation.”

Insomniacs can read the EEOC’s full press release at http://www.eeoc.gov/press/4-7-08.html.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Obtains $904K Settlement on Behalf of 10 Employees Fired in a RIF Who Alleged Age Discrimination and/or Retaliation.

Yesterday, the EEOC “announced the settlement of its age discrimination lawsuit against Lockheed Martin Global Telecommunications for $773,000 for a class of eight older employees” in addition to the severance pay already received by the eight employees. In addition, “through a separate consent decree filed last year to settle retaliation claims brought in the same lawsuit, “Lockheed Martin has paid $131,000 in damages to two former employees whose severance was withheld because they had pursued administrative complaints with the EEOC.”

"In its suit (05-cv-00287-RWT), filed in the U.S. District Court for the District of Maryland, Southern Division, the EEOC charged that the . . . employer violated the Age Discrimination in Employment Act (ADEA) when it discriminated against the employees, ages 65, 62, 61 (three), 53 and 47. The eight workers were fired during a reduction in force implemented in the COMSAT Mobile Communications Division in October 2000. The back pay remedies received by the claimants are in addition to severance pay already received.”

“In Fiscal Year 2007, the EEOC received 19,103 age discrimination charge filings, a 15% increase from the prior year and the biggest annual increase in five years. Allegations of age bias account for 23% of the agency’s private sector caseload.”

Insomniacs can read the EEOC’s full press release at http://www.eeoc.gov/press/4-7-08a.html.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.