As summarized here on December 9, 2008 and January 12, 2009, the federal government published its final regulation in November which will require many federal contractors and subcontractors to begin using the e-verify program to confirm the employment eligibility of many existing and newly-hired employees as federal service and construction contracts and solicitations are issued or amended. However, although the initial implementation date was scheduled to be January 15, 2009 and was pushed back to February 20, 2009, it has once against been postponed until May 21, 2009. In other words, federal agencies have been directed to postpone the insertion of a new clause into procurement contracts and solicitations requiring contractors and subcontractors to enroll and utilize the e-verify program. This regulation implements Executive Order 12989 which was amended in June 2008.
The USCIC website now provides, among other things, that “This new rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the United States. Federal contracts awarded and solicitations issued after May 21, 2009 will include a clause committing government contractors to use E-Verify. The same clause will also be required in subcontracts over $3,000 for services or construction. Contracts exempt from this rule include those that are for less than $100,000 and those that are for commercially available off-the-shelf items. Companies awarded a contract with the federal government will be required to enroll in E-Verify within 30 days of the contract award date. They will also need to begin using the E-Verify system to confirm that all of their new hires and their employees directly working on federal contracts are authorized to legally work in the United States.”
Additional details about the e-verify requirements and exemptions are included in the December 9 posting [Many Federal Contractors and Subcontractors Required to Use E-verify Program After January 15, 2009].
Contractors remain free to utilize the e-verify system and USCIS points out that more than 100,000 employers have registered for the program. In response to the Chamber’s protests about e-verify, USCIS contends that e-verify is not mandatory because employers are not mandated to become federal contractors.
Insomniacs can read the UCSIS announcement at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=534bbd181e09d110VgnVCM1000004718190aRCRD&vgnextchannel=534bbd181e09d110VgnVCM1000004718190aRCRD.
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.
Tuesday, February 3, 2009
Monday, February 2, 2009
New I-9 Form Delayed Until April 3, 2009
No one would ever accuse the federal government of being efficient. As reported here on January 26, 2009, USCIS announced in December 2008 that a new I-9 form would become mandatory for all employers on February 2, 2009. However, this new I-9 form was not placed on the USCIS website until the end of January 2009 – days after the Obama inauguration and only days before the mandatory deadline. Then, on Friday, January 30, 2009 -- only a week later and only one business day before the new form became mandatory -- the Obama administration has announced that EMPLOYERS MUST NOT USE THE NEW FORM UNTIL April 3, 2009. Indeed, the new administration has re-opened the review and public comment period until March 3, 2009.
Insomniacs can read the full USCIS press release at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=52b16d962492f110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.
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.
Insomniacs can read the full USCIS press release at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=52b16d962492f110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.
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.
Monday, January 26, 2009
Employers Must Begin Using Another New I-9 Form Beginning on Monday, February 2, 2009.
NOTICE: This information was superceded on January 30, 2009. See posting on February 2, 2009.
On December 11, 2008, the Citizenship and Immigration Service (CIS) announced that it had submitted to the Federal Register an interim final rule which would streamline the I-9 process and yet again revised the I-9 form. According to the CIS, “[t]he interim final rule narrows the list of acceptable identity documents and further specifies that expired documents are not considered acceptable forms of identification. An expansive document list makes it more difficult for employers to verify valid and acceptable forms and single out false documents compromising the effectiveness and security of the Form I-9 process. The changes included in the interim final rule will significantly improve the security of the employment eligibility verification process.” However, it has taken until late January for the CIS to finally place the new I-9 form on its website for employers to download and begin using next week.
In particular, the new “rule eliminates Forms I-688, I-688A, and I-688B (Temporary Resident Card and older versions of the Employment Authorization Card/Document) from List A. USCIS no longer issues these cards, and all that were in circulation have expired. The rule also adds to List A of the Form I-9 foreign passports containing specially-marked machine-readable visas and documentation for certain citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI). The rule makes other, technical changes to update the list of acceptable documents. The revised Form I-9 includes additional changes, such as revisions to the employee attestation section, and the addition of the new U.S. Passport Card to List A. “
Insomniacs can review the CIS press release in full at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=9ad43f347a62e110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The pending interim final rule can be reviewed in full at http://edocket.access.gpo.gov/2008/E8-29874.htm. The new I-9 form to be used only after February 2, 2009 can be downloaded from
http://www.uscis.gov/files/form/I-9_IFR_02-02-09.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.
On December 11, 2008, the Citizenship and Immigration Service (CIS) announced that it had submitted to the Federal Register an interim final rule which would streamline the I-9 process and yet again revised the I-9 form. According to the CIS, “[t]he interim final rule narrows the list of acceptable identity documents and further specifies that expired documents are not considered acceptable forms of identification. An expansive document list makes it more difficult for employers to verify valid and acceptable forms and single out false documents compromising the effectiveness and security of the Form I-9 process. The changes included in the interim final rule will significantly improve the security of the employment eligibility verification process.” However, it has taken until late January for the CIS to finally place the new I-9 form on its website for employers to download and begin using next week.
In particular, the new “rule eliminates Forms I-688, I-688A, and I-688B (Temporary Resident Card and older versions of the Employment Authorization Card/Document) from List A. USCIS no longer issues these cards, and all that were in circulation have expired. The rule also adds to List A of the Form I-9 foreign passports containing specially-marked machine-readable visas and documentation for certain citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI). The rule makes other, technical changes to update the list of acceptable documents. The revised Form I-9 includes additional changes, such as revisions to the employee attestation section, and the addition of the new U.S. Passport Card to List A. “
Insomniacs can review the CIS press release in full at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=9ad43f347a62e110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The pending interim final rule can be reviewed in full at http://edocket.access.gpo.gov/2008/E8-29874.htm. The new I-9 form to be used only after February 2, 2009 can be downloaded from
http://www.uscis.gov/files/form/I-9_IFR_02-02-09.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.
Supreme Court: Answers Given During Employer’s Internal Investigation Can Constitute Protected Opposition under Title VII.
Today, a unanimous United States Supreme Court reversed a judgment affirmed by the Sixth Circuit Court of Appeals in Cincinnati in favor of a Tennessee school district which fired an employee (for alleged embezzlement) after she answered questions during an internal investigation into rumors of sexual harassment which revealed that she felt sexually harassed by the school’s employee relations director. Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, No. 06-1595. The Court held that the protection of Title VII’s opposition clause “extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation.” In doing so, the Court rejected the employer’s argument that the employee’s passive response to questions during the internal investigation was not entitled to the same legal protection given to employees who affirmatively lodge a complaint of harassment with the employer or an agency because it would discourage employers from conducting internal investigations out of fear of creating new classes of protected employees. The Court concluded that “nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.”
According to the Court’s opinion, the employer “began looking into rumors of sexual harassment by [its] employee relations director” in 2002. When the investigator asked the plaintiff, “a 30-year Metro employee, whether she had witnessed ‘inappropriate behavior’ on the part of” the director, the plaintiff “described several instances of sexually harassing behavior: once, [the director] had answered her greeting, ‘Hey Dr. Hughes, what’s up?,’ by grabbing his crotch and saying ‘[Y]ou know what’s up’; he had repeatedly ‘put his crotch up to[her] window’; and on one occasion he had entered her office and ‘grabbed her head and pulled it to his crotch,’. . . Two other employees also reported being sexually harassed by [the director.]” Although the school district took no action against the director, it fired the plaintiff “and the two other accusers soon after finishing the investigation, saying in [the plaintiff’s] case that it was for embezzlement.” In turn, the plaintiff filed a charge of retaliation with the EEOC and ultimately filed suit in federal court.
“The Title VII antiretaliation provision has two clauses, making it “an unlawful employment practice for an employer to discriminate against any of his employees . . . [1] because he has opposed any practice made an unlawful employment practice by this subchapter, or [2] because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U. S. C. §2000e–3(a). The one is known as the “opposition clause,” the other as the “participation clause,” and [the plaintiff] accused [the school district] of violating both.” The district court granted summary judgment for the employer on the grounds that the plaintiff had failed to engage in activity protected under Title VII. The Sixth Circuit affirmed.
In reversing, the Court noted that “’Oppose’ goes beyond ‘active, consistent’ behavior in ordinary discourse, where we would naturally use the word to speak of someone who has taken no action at all to advance a position beyond disclosing it. Countless people were known to “oppose” slavery before Emancipation, or are said to “oppose” capital punishment today, without writing public letters, taking to the streets, or resisting the government. And we would call it “opposition” if an employee took a stand against an employer’s discriminatory practices not by “instigating” action, but by standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons. . . . There is, then, no reason to doubt that a person can “oppose” by responding to someone else’s question just as surely as by provoking the discussion.”
The Court was unconcerned with disincentives for an employer to conduct a thorough internal investigation because it felt that the affirmative defenses created in its Ellerth and Faragher decisions were sufficient incentive for an employer to conduct internal investigations of sexual harassment rumors and allegations. Indeed, it felt that a contrary decision in this case would undermine the structure it had created in those earlier cases: “If it were clear law that an employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others. . . . The appeals court’s rule would thus create a real dilemma for any knowledgeable employee in a hostile work environment if the boss took steps to assure a defense under our cases. If the employee reported discrimination in response to the enquiries, the employer might well be free to penalize her for speaking up. But if she kept quiet about the discrimination and later filed a Title VII claim, the employer might well escape liability, arguing that it “exercised reasonable care to prevent and correct [any discrimination] promptly” but “the plaintiff employee unreasonably failed to take advantage of . . .preventive or corrective opportunities provided by the employer.”
Finally, the Court rejected any requirement that the plaintiff bring her own internal complaint before filing a Charge or lawsuit as indicated by the Court’s earlier discussions in Faragher and Ellerth of an employee’s obligation to exercise reasonable care to avoid and/or mitigate the harm. “But that mitigation requirement only applies to employees who are suffering discrimination and have the opportunity to fix it by ‘tak[ing] advantage of any preventive or corrective opportunities provided by the employer,’; it is based on the general principle “that a victim has a duty ‘to use such means as are reasonable under the circumstances to avoid or minimize . . . damages,’ . . . We have never suggested that employees have a legal obligation to report discrimination against others to their employer on their own initiative, let alone lose statutory protection by failing to speak. Extending the mitigation requirement so far would make no sense; employees will often face retaliation not for opposing discrimination they themselves face, but for reporting discrimination suffered by others. Thus, they are not “victims” of anything until they are retaliated against, and it would be absurd to require them to “mitigate” damages they may be unaware they will suffer.”
Nonetheless, the Court recognized that not every description of harassing behavior during an internal investigation will constitute protected conduct: “It is true that one can imagine exceptions, like an employee’s description of a supervisor’s racist joke as hilarious, but these will be eccentric cases, and this is not one of them” even though there was evidence (which could not be fully considered at the summary judgment stage of the litigation) that the plaintiff had told the director to “bite me” and “flip[ed] him a bird” because the plaintiff “gave no indication that [his] gross clowning was anything but offensive to her.”
Insomniacs can read the Supreme Court’s full opinion at
According to the Court’s opinion, the employer “began looking into rumors of sexual harassment by [its] employee relations director” in 2002. When the investigator asked the plaintiff, “a 30-year Metro employee, whether she had witnessed ‘inappropriate behavior’ on the part of” the director, the plaintiff “described several instances of sexually harassing behavior: once, [the director] had answered her greeting, ‘Hey Dr. Hughes, what’s up?,’ by grabbing his crotch and saying ‘[Y]ou know what’s up’; he had repeatedly ‘put his crotch up to[her] window’; and on one occasion he had entered her office and ‘grabbed her head and pulled it to his crotch,’. . . Two other employees also reported being sexually harassed by [the director.]” Although the school district took no action against the director, it fired the plaintiff “and the two other accusers soon after finishing the investigation, saying in [the plaintiff’s] case that it was for embezzlement.” In turn, the plaintiff filed a charge of retaliation with the EEOC and ultimately filed suit in federal court.
“The Title VII antiretaliation provision has two clauses, making it “an unlawful employment practice for an employer to discriminate against any of his employees . . . [1] because he has opposed any practice made an unlawful employment practice by this subchapter, or [2] because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U. S. C. §2000e–3(a). The one is known as the “opposition clause,” the other as the “participation clause,” and [the plaintiff] accused [the school district] of violating both.” The district court granted summary judgment for the employer on the grounds that the plaintiff had failed to engage in activity protected under Title VII. The Sixth Circuit affirmed.
In reversing, the Court noted that “’Oppose’ goes beyond ‘active, consistent’ behavior in ordinary discourse, where we would naturally use the word to speak of someone who has taken no action at all to advance a position beyond disclosing it. Countless people were known to “oppose” slavery before Emancipation, or are said to “oppose” capital punishment today, without writing public letters, taking to the streets, or resisting the government. And we would call it “opposition” if an employee took a stand against an employer’s discriminatory practices not by “instigating” action, but by standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons. . . . There is, then, no reason to doubt that a person can “oppose” by responding to someone else’s question just as surely as by provoking the discussion.”
The Court was unconcerned with disincentives for an employer to conduct a thorough internal investigation because it felt that the affirmative defenses created in its Ellerth and Faragher decisions were sufficient incentive for an employer to conduct internal investigations of sexual harassment rumors and allegations. Indeed, it felt that a contrary decision in this case would undermine the structure it had created in those earlier cases: “If it were clear law that an employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others. . . . The appeals court’s rule would thus create a real dilemma for any knowledgeable employee in a hostile work environment if the boss took steps to assure a defense under our cases. If the employee reported discrimination in response to the enquiries, the employer might well be free to penalize her for speaking up. But if she kept quiet about the discrimination and later filed a Title VII claim, the employer might well escape liability, arguing that it “exercised reasonable care to prevent and correct [any discrimination] promptly” but “the plaintiff employee unreasonably failed to take advantage of . . .preventive or corrective opportunities provided by the employer.”
Finally, the Court rejected any requirement that the plaintiff bring her own internal complaint before filing a Charge or lawsuit as indicated by the Court’s earlier discussions in Faragher and Ellerth of an employee’s obligation to exercise reasonable care to avoid and/or mitigate the harm. “But that mitigation requirement only applies to employees who are suffering discrimination and have the opportunity to fix it by ‘tak[ing] advantage of any preventive or corrective opportunities provided by the employer,’; it is based on the general principle “that a victim has a duty ‘to use such means as are reasonable under the circumstances to avoid or minimize . . . damages,’ . . . We have never suggested that employees have a legal obligation to report discrimination against others to their employer on their own initiative, let alone lose statutory protection by failing to speak. Extending the mitigation requirement so far would make no sense; employees will often face retaliation not for opposing discrimination they themselves face, but for reporting discrimination suffered by others. Thus, they are not “victims” of anything until they are retaliated against, and it would be absurd to require them to “mitigate” damages they may be unaware they will suffer.”
Nonetheless, the Court recognized that not every description of harassing behavior during an internal investigation will constitute protected conduct: “It is true that one can imagine exceptions, like an employee’s description of a supervisor’s racist joke as hilarious, but these will be eccentric cases, and this is not one of them” even though there was evidence (which could not be fully considered at the summary judgment stage of the litigation) that the plaintiff had told the director to “bite me” and “flip[ed] him a bird” because the plaintiff “gave no indication that [his] gross clowning was anything but offensive to her.”
Insomniacs can read the Supreme Court’s full opinion at
Trucking Company Pitt-Ohio Agrees To Pay $2.43M To Settle EEOC Sex Discrimination Class Action Lawsuit
On Thursday, the EEOC’s Cleveland office announced that the interstate trucking firm, Pitt-Ohio Express, Inc., “has agreed to pay $2.43 million and provide other remedial relief to a class of women to settle” a sex discrimination class action lawsuit brought by the EEOC. The EEOC had alleged in this lawsuit “that Pitt Ohio Express Inc. denied a class of qualified female applicants employment as truck drivers or dockworkers since 1997, while men were placed in these positions during the same period. The comprehensive relief obtained by the EEOC includes $2.43 million for the class of women denied employment. Non-monetary relief includes offers of employment to women who should have been previously hired as drivers and dock workers and equal employment opportunity training to all supervisors and managers, as well as reporting and monitoring provisions.”
According to the EEOC, “[t]he consent decree settling the suit was approved by the court following a fairness hearing held [Thursday] morning. . . . Pitt-Ohio Express Inc. is a regional carrier specializing in short-haul transporting, providing direct service to over seven states in the northeastern United States. The company is headquartered in Pittsburgh and has terminals in Cleveland, Columbus, Cincinnati and Toledo.”
According to the terms of the consent decree, “neither this Decree nor the fact of a settlement are an admission or concession by Pitt Ohio of any violation of Title VII or of any liability or wrongdoing whatsoever.” Nonetheless, the consent decree contains the following terms:
• Pitt Ohio, its officers, agents, employees and all others in active concert with them are enjoined from discriminating in hiring based on sex in violation of Title VII against female applicants for driver and dockworker positions in its Ohio terminals, and from failing to create and maintain records as required by Title VII or regulations issued pursuant to Title VII.
• Pitt Ohio, it officers, agents, employees and all others in active concert with them shall not retaliate against any female applicants for driver and dockworker positions at its Ohio terminals for participating in this proceeding or otherwise asserting any rights under Title VII in this proceeding.
• The payments to Claimants are for compensatory damages. Based on the lack of any prior employment relationship between Pitt Ohio and the Claimants, the absence of any adjudication of issues raised in the Complaint and Pitt Ohio's payment to the Claim Fund according to the procedures herein as a step in resolving all claims and issues, each Claimant, to whom a payment was made will be provided by the Claim Fund, an IRS Form 1099-MISC for the year in which payment is made, as required by law, directed to the same address to which the check was sent.
• Within 60 days after the entry of this Decree, EEOC shall provide Pitt Ohio the name of each Offer Eligible Claimant who has expressed interest in employment with Pitt Ohio and whom it contends should receive "priority hiring consideration" as defined in paragraph 23, and at the same time it will provide Pitt Ohio the current qualifications information received from each such Offer Eligible Claimant. As used herein, "priority hiring consideration" refers to Pitt Ohio's obligation to make employment offers for driver and dockworker positions to Offer Eligible Claimants who meet the hiring criteria in effect for such positions at the time the offer for such position would be made. . . . Absent disagreement or once any disagreement about whether an Offer Eligible Claimant should receive "priority hiring consideration" has been resolved, such Offer Eligible Claimant entitled to "priority hiring consideration" shall be placed on a "Job Offer List" according to her stated Ohio terminal preference for employment. When a job vacancy for a driver or dockworker position becomes available at an Ohio terminal, Pitt Ohio will consult the Job Offer List for that terminal, invite as many Offer Eligible Claimants to interview as it deems appropriate and make offers of employment to Offer Eligible Claimants on the Job Offer List before considering the application of any other person. . . . Pursuant to these "priority hiring consideration" provisions, Pitt Ohio shall extend at least 40 offers of employment, 26 for driver positions and 14 for dockworker positions. If at least 30 hires do not result from the initial offers, EEOC will provide Pitt Ohio the names of additional Offer Eligible Claimants and Pitt Ohio shall in good faith make additional offers until 30 hires are achieved or until the termination of this Decree, whichever is earlier. Each Offer Eligible Claimant hired pursuant to the "priority hiring consideration" provisions will receive "rightful place instatement." "Rightful place instatement" shall mean that, when an Offer Eligible Claimant is hired into a driver or dockworker position, she shall be hired into the vacant position at the then existing hiring rate for the position with seniority rights and accompanying benefits, based on the position and her earlier date of application. Rightful place instatement shall not extend to bumping Pitt Ohio employees who occupy jobs, displacement of drivers from current route and shift assignments, or vacation preference rights.
• Pitt Ohio will appoint from its human resources department an ombudsperson to resolve informally issues arising from or which result from women entering driver and/or dockworker positions pursuant to the terms of this Decree. To the extent necessary, Pitt Ohio will issue procedures for submission and handling of issues by the ombudsperson. The ombudsperson will not be the person in the human resources department responsible for responding to EEO charges or other EEO compliance.
• Within 30 days after the date of this Decree, Pitt Ohio shall provide a training proposal to EEOC for approval. The proposal shall include: format of the training; name(s) and qualifications of the instructor(s); content and topics to be covered; length of the program; and estimated training dates and locations. The training shall include at least the following topics: Title VII recordkeeping requirements (retention requirements, prohibition against destruction of records, etc.); hiring practices and procedures which comply with Title VII; the interview process and types of questions to be asked of applicants; and personnel policies and procedures which comply with Title VII. Pitt Ohio shall conduct EEO training to be attended by its executives, managers, supervisors, human resources staff and recruiters from its corporate headquarters and Ohio terminals, and any other employees at corporate headquarters and the Ohio terminals coming in direct contact with prospective applicants or involved in the recruitment, selection and hiring process. This training shall be completed within 90 days of the date of this Decree. Pitt Ohio shall train all newly-hired and newly-promoted management or supervisory staff, and other staff involved in the application and hiring process at its corporate headquarters or Ohio terminals on equal employment opportunity law, including the topics listed in paragraphs 34, within 90 days after their hire, promotion or transfer for the duration of this Agreement. To satisfy this requirement, Pitt Ohio may substitute viewing of a video presentation of the original training session, provided a qualified trainer attends to answer questions.
• In addition to the steps of training and appointment of an ombudsperson, identified elsewhere in this Decree, Pitt Ohio will help assure management and supervisory accountability in effecting the terms of this Decree in its Ohio facilities by: (a) directing managers and supervisors to carry out their supervisory responsibilities so as to achieve compliance with Pitt Ohio's policy or policies prohibiting unlawful employment discrimination and/or retaliation; (b) taking corrective action, which may include discipline up to and including discharge of any supervisor or manager who violates Pitt Ohio's policy or policies prohibiting unlawful employment discrimination or retaliation; (c) directing managers and supervisors to report incidents of unlawful discrimination and/or retaliation to Pitt Ohio's human resources group.
• Pitt Ohio will incorporate into the performance evaluations of its supervisors and managers an equal opportunity component.
• Within 14 days after the date of this Decree, Pitt Ohio shall post the Notice attached as Exhibit C at its Ohio terminals and corporate headquarters, and keep it upon those premises in places where bulletins and notices to employees and applicants for employment customarily are posted. Such Notice shall remain for the five-year duration of this Decree. If such Notice becomes defaced, marred or otherwise unreadable, Pitt Ohio will ensure that new readable copies are posted in the same manner as heretofore specified.
• With the first reporting period starting on the first day of the month immediately after the date of this Decree, Pitt Ohio shall submit to the EEOC's Cleveland Field Office a written report for each preceding six-month period for three years and then for each preceding one-year period for the remaining term of the Agreement, regarding recruitment and hiring of women in driver and dockworker positions in Ohio, which shall include: (a) for each Ohio terminal for the reporting period, a list of driver and dockworker hires, including name, sex, date of hire, job title, rate of pay, and status as full-time or part-time employee; (b) for each Ohio terminal for the reporting period, a list of the names of driver and dockworker applicants, their sex, and for each their address, social security number (if available), job applied for, date of application and an indication of the status of the applicant (i.e., hired or disposition code information); and (c) for each Ohio terminal, copies of the applicant logs for the preceding reporting period.
Insomniacs may read the full EEOC press release at http://www.eeoc.gov/press/1-22-09.html and the full terms of the consent decree at
According to the EEOC, “[t]he consent decree settling the suit was approved by the court following a fairness hearing held [Thursday] morning. . . . Pitt-Ohio Express Inc. is a regional carrier specializing in short-haul transporting, providing direct service to over seven states in the northeastern United States. The company is headquartered in Pittsburgh and has terminals in Cleveland, Columbus, Cincinnati and Toledo.”
According to the terms of the consent decree, “neither this Decree nor the fact of a settlement are an admission or concession by Pitt Ohio of any violation of Title VII or of any liability or wrongdoing whatsoever.” Nonetheless, the consent decree contains the following terms:
• Pitt Ohio, its officers, agents, employees and all others in active concert with them are enjoined from discriminating in hiring based on sex in violation of Title VII against female applicants for driver and dockworker positions in its Ohio terminals, and from failing to create and maintain records as required by Title VII or regulations issued pursuant to Title VII.
• Pitt Ohio, it officers, agents, employees and all others in active concert with them shall not retaliate against any female applicants for driver and dockworker positions at its Ohio terminals for participating in this proceeding or otherwise asserting any rights under Title VII in this proceeding.
• The payments to Claimants are for compensatory damages. Based on the lack of any prior employment relationship between Pitt Ohio and the Claimants, the absence of any adjudication of issues raised in the Complaint and Pitt Ohio's payment to the Claim Fund according to the procedures herein as a step in resolving all claims and issues, each Claimant, to whom a payment was made will be provided by the Claim Fund, an IRS Form 1099-MISC for the year in which payment is made, as required by law, directed to the same address to which the check was sent.
• Within 60 days after the entry of this Decree, EEOC shall provide Pitt Ohio the name of each Offer Eligible Claimant who has expressed interest in employment with Pitt Ohio and whom it contends should receive "priority hiring consideration" as defined in paragraph 23, and at the same time it will provide Pitt Ohio the current qualifications information received from each such Offer Eligible Claimant. As used herein, "priority hiring consideration" refers to Pitt Ohio's obligation to make employment offers for driver and dockworker positions to Offer Eligible Claimants who meet the hiring criteria in effect for such positions at the time the offer for such position would be made. . . . Absent disagreement or once any disagreement about whether an Offer Eligible Claimant should receive "priority hiring consideration" has been resolved, such Offer Eligible Claimant entitled to "priority hiring consideration" shall be placed on a "Job Offer List" according to her stated Ohio terminal preference for employment. When a job vacancy for a driver or dockworker position becomes available at an Ohio terminal, Pitt Ohio will consult the Job Offer List for that terminal, invite as many Offer Eligible Claimants to interview as it deems appropriate and make offers of employment to Offer Eligible Claimants on the Job Offer List before considering the application of any other person. . . . Pursuant to these "priority hiring consideration" provisions, Pitt Ohio shall extend at least 40 offers of employment, 26 for driver positions and 14 for dockworker positions. If at least 30 hires do not result from the initial offers, EEOC will provide Pitt Ohio the names of additional Offer Eligible Claimants and Pitt Ohio shall in good faith make additional offers until 30 hires are achieved or until the termination of this Decree, whichever is earlier. Each Offer Eligible Claimant hired pursuant to the "priority hiring consideration" provisions will receive "rightful place instatement." "Rightful place instatement" shall mean that, when an Offer Eligible Claimant is hired into a driver or dockworker position, she shall be hired into the vacant position at the then existing hiring rate for the position with seniority rights and accompanying benefits, based on the position and her earlier date of application. Rightful place instatement shall not extend to bumping Pitt Ohio employees who occupy jobs, displacement of drivers from current route and shift assignments, or vacation preference rights.
• Pitt Ohio will appoint from its human resources department an ombudsperson to resolve informally issues arising from or which result from women entering driver and/or dockworker positions pursuant to the terms of this Decree. To the extent necessary, Pitt Ohio will issue procedures for submission and handling of issues by the ombudsperson. The ombudsperson will not be the person in the human resources department responsible for responding to EEO charges or other EEO compliance.
• Within 30 days after the date of this Decree, Pitt Ohio shall provide a training proposal to EEOC for approval. The proposal shall include: format of the training; name(s) and qualifications of the instructor(s); content and topics to be covered; length of the program; and estimated training dates and locations. The training shall include at least the following topics: Title VII recordkeeping requirements (retention requirements, prohibition against destruction of records, etc.); hiring practices and procedures which comply with Title VII; the interview process and types of questions to be asked of applicants; and personnel policies and procedures which comply with Title VII. Pitt Ohio shall conduct EEO training to be attended by its executives, managers, supervisors, human resources staff and recruiters from its corporate headquarters and Ohio terminals, and any other employees at corporate headquarters and the Ohio terminals coming in direct contact with prospective applicants or involved in the recruitment, selection and hiring process. This training shall be completed within 90 days of the date of this Decree. Pitt Ohio shall train all newly-hired and newly-promoted management or supervisory staff, and other staff involved in the application and hiring process at its corporate headquarters or Ohio terminals on equal employment opportunity law, including the topics listed in paragraphs 34, within 90 days after their hire, promotion or transfer for the duration of this Agreement. To satisfy this requirement, Pitt Ohio may substitute viewing of a video presentation of the original training session, provided a qualified trainer attends to answer questions.
• In addition to the steps of training and appointment of an ombudsperson, identified elsewhere in this Decree, Pitt Ohio will help assure management and supervisory accountability in effecting the terms of this Decree in its Ohio facilities by: (a) directing managers and supervisors to carry out their supervisory responsibilities so as to achieve compliance with Pitt Ohio's policy or policies prohibiting unlawful employment discrimination and/or retaliation; (b) taking corrective action, which may include discipline up to and including discharge of any supervisor or manager who violates Pitt Ohio's policy or policies prohibiting unlawful employment discrimination or retaliation; (c) directing managers and supervisors to report incidents of unlawful discrimination and/or retaliation to Pitt Ohio's human resources group.
• Pitt Ohio will incorporate into the performance evaluations of its supervisors and managers an equal opportunity component.
• Within 14 days after the date of this Decree, Pitt Ohio shall post the Notice attached as Exhibit C at its Ohio terminals and corporate headquarters, and keep it upon those premises in places where bulletins and notices to employees and applicants for employment customarily are posted. Such Notice shall remain for the five-year duration of this Decree. If such Notice becomes defaced, marred or otherwise unreadable, Pitt Ohio will ensure that new readable copies are posted in the same manner as heretofore specified.
• With the first reporting period starting on the first day of the month immediately after the date of this Decree, Pitt Ohio shall submit to the EEOC's Cleveland Field Office a written report for each preceding six-month period for three years and then for each preceding one-year period for the remaining term of the Agreement, regarding recruitment and hiring of women in driver and dockworker positions in Ohio, which shall include: (a) for each Ohio terminal for the reporting period, a list of driver and dockworker hires, including name, sex, date of hire, job title, rate of pay, and status as full-time or part-time employee; (b) for each Ohio terminal for the reporting period, a list of the names of driver and dockworker applicants, their sex, and for each their address, social security number (if available), job applied for, date of application and an indication of the status of the applicant (i.e., hired or disposition code information); and (c) for each Ohio terminal, copies of the applicant logs for the preceding reporting period.
Insomniacs may read the full EEOC press release at http://www.eeoc.gov/press/1-22-09.html and the full terms of the consent decree at
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