Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.
 
Announcements
You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners. More details about the events and Human Resources 4U can be found on my website.
 

Employee Handbook Updates 2013: There have been significant changes to CA employment laws in the past two years. If you haven’t updated your Employee Handbook recently and you are interested in having me update your employee handbook, please contact me.

Special Bulletin: Your OSHA 300A log must be posted from February 1 through April 30

EEOC Wins Jury Verdict Against RadioShack in Retaliation Case
The EEOC won a victory in federal court in Denver yesterday afternoon in its employment discrimination lawsuit against major communications equipment retailer RadioShack. A unanimous jury of nine decided that RadioShack intentionally fired an employee in retaliation for his complaints about age discrimination.

According to the EEOC's suit, in the fall of 2007, David Nelson, then 55, had been employed for more than 25 years when RadioShack assigned a new, 43-year-old regional manager to supervise him. Within four months of the new supervisor's arrival at the regional office in Denver, Nelson, who had a spotless performance record, was placed on two performance improvement plans. Nelson believed that he was being discriminated against by his new supervisor because of his age and he complained to the human resources department about the discrimination. Within five days of the first complaint, before the period for assessing the improvement in his performance had expired, RadioShack terminated Nelson in retaliation for his discrimination complaint.

Age discrimination and retaliation for complaining about it violate the Age Discrimination in Employment Act (ADEA). The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process.

The EEOC sought back pay, lost benefits, liquidated damages and reinstatement for Nelson. The Denver jury awarded Nelson $187,000 in back pay on the retaliation claim and found that this conduct by RadioShack was willful. The Federal Court Judge will decide several issues in the near future, including liquidated damages, which is double back pay, since the jury found the behavior to be willful. The judge will also determine whether front pay is appropriate and, if so, the amount of front pay, as well as equitable relief.

The EEOC is seeing a disturbing increase in the number of retaliation charges. In fiscal year 2011, the EEOC received 37,334 charges alleging retaliation. This constituted 37.4% of the total number of charges, the largest number of any basis for a discrimination charge.

Intellectually Disabled Workers Awarded $1.3M for Pay Discrimination
Hill Country Farms Inc., doing business as Henry's Turkey Service, violated the Americans with Disabilities Act (ADA) by paying 32 workers with intellectual disabilities severely substandard wages, a judge has ruled in a lawsuit filed by the EEOC. The court ordered the company, based in Goldthwaite, Texas, to pay its former employees lawful wages totaling $1.3 million for jobs they performed under contract at a turkey processing plant in West Liberty, Iowa between 2007 and 2009.

The EEOC alleged that Henry's Turkey exploited a class of disabled workers because their intellectual impairments made them vulnerable and unaware of the extent to which their legal rights were being violated.

In this latest ruling the U.S. District Court Judge found that, rather than the total of $65 dollars per month Henry's Turkey paid to the disabled workers while contracted to work on an evisceration line at the plant, the employees should have been compensated at the average wage of $11-12 per hour, reflecting pay typically earned by non-disabled workers who performed the same or similar work. The EEOC's wage claims for each worker ranged from $28,000 to $45,000 in lost income over the course of their last two years before the Henry's Turkey Service operation was shut down in February 2009.

According to the EEOC, this case reflects the Commission's longstanding commitment to enforce the anti-discrimination laws nationwide on behalf of all workers, including workers with intellectual disabilities and other vulnerable communities. It is a serious mistake for any employer not to adopt safeguards against unlawful discrimination based on the assumption that workers will not exercise their rights due to fear or the lack of understanding.

In its motion for partial summary judgment, the EEOC argued that Henry's Turkey Service was not justified in paying disabled workers wages that were lower than the minimum wage for Iowa where they lived and worked, and that the disabled workers, some of whom had performed the work for over 25 years, were due the same wage rate as non-disabled workers. In support of its motion, EEOC included the statement of a West Liberty Foods supervisor, who stated that the contracted Henry's workers were as productive as other workers in the plant, and that they actually demonstrated their knowledge and skills to persons who were being hired to replace them as the Henry's Turkey contract operations were winding down.

The EEOC also submitted evidence from West Liberty Foods records showing that while the plant paid Henry's Turkey Service as much as $11,000 per week for the work performed by the crew of 25-30 disabled men, Henry's paid the men only an average of $15 per week each.
Henry's maintained that it should be credited with wages for providing a 100-year-old former schoolhouse as living quarters. The EEOC submitted evidence, however, from various witnesses, including admissions by Henry's supervisors, that the "bunkhouse"– from which the men were later evacuated — was closed down by the state fire marshal as unsafe, its heating was inadequate, the bug-infested building had rodent problems, and the roof was in such disrepair that buckets were put out to catch water pouring in. The EEOC's position, supported by testimony of the U.S. Department of Labor, was that it was unlawful for the company to deny the disabled workers their full wages and benefits by claiming a "credit" for these substandard living conditions.

Company officers were never able to explain why they were deducting about $1,000 per month from each employee's wages to cover the company's alleged room and board and expenses, while simultaneously pulling out hundreds of dollars per month from each of the men's personal Social Security SSI and disability benefit accounts to reimburse itself for the very same described 'expenses'.  Anyone could plainly see that the math just didn't add up, while the personal costs to the men continued to multiply.

In addition to the discriminatory pay practices which are the subject of the court's order, the EEOC's suit also alleges that the company subjected the disabled workers to abusive verbal and physical harassment, unnecessarily restricted their freedom, and imposed harsh punishments and other adverse terms and conditions of employment such as requiring them to live collectively in substandard living conditions and failing to provide proper health care. The EEOC's trial on these remaining issues regarding mistreatment of the workers is currently scheduled for March 2013.

Factoids

• 95% of HR professionals say it is either important of extremely important to comply with DOL regulations but only 36% say they are “confident” their organization is compliant.

ADA accommodations

• More than 50% of companies report that there were no costs whatsoever in making accommodations
• 38% incurred a one-time cost, the typical expenditure was $500

Good “stay interview” questions

• If you suddenly came into a lot of money and decided to leave us, what would you miss most? What would you miss the least?
• If you can imagine your dream job doing anything, anywhere, what does it look like?