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 or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.

 

Upcoming events are on May 23 "The Three Biggest HR Risks Effecting Business Growth" sponsored by FSRG and on June 25 my last HR4U 101 Workshop for 2013.

 

Hamilton Growers Pays $500,000 to Settle EEOC Race / National Origin Discrimination Lawsuit

Hamilton Growers, Inc., doing business as Southern Valley Fruit and Vegetable, Inc., an agricultural farm in Norman Park, Ga., has agreed to pay $500,000 to a class of American seasonal workers – many of them African-American – who, the EEOC alleged, were subjected to discrimination based on their national origin and/or race. 

 

The EEOC's suit had charged that the company unlawfully engaged in a pattern or practice of discrimination against American workers by firing virtually all American workers while retaining workers from Mexico during the 2009, 2010 and 2011 growing seasons.  The agency also alleged that Hamilton Growers fired at least 16 African-American workers in 2009 based on race and/or national origin as their termination was coupled with race-based comments by a management official.  Additionally, the lawsuit charged that Hamilton Growers provided lesser job opportunities to American workers by assigning them to pick vegetables in fields which had already been picked by foreign workers, which resulted in Americans earning less pay than their Mexican counterparts.  

 

The EEOC also alleged that American workers were regularly subjected to different terms and conditions of employment, including delayed starting times and early stop times, or denied the opportunity to work at all, while Mexican workers were allowed to continue working.  The settlement provides monetary relief to 19 persons who filed charges with the agency and other American workers harmed by the practices. The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process. 

 

Forty of the workers intervened in the lawsuit and filed additional claims seeking relief under the Fair Labor Standards Act and Agricultural Worker Protection Act. Pursuant to the consent decree settling the suit, the Hamilton Growers will exercise good faith in hiring and retaining qualified workers of American national origin and African-American workers for all farm work positions, including supervisory positions.  Hamilton Growers will also implement non-discriminatory hiring measures, which include targeted recruitment and advertising, appointment of a compliance official, and training for positive equal employment opportunity management practices.  The company has also pledged, among other things, to create a termination appeal process; extend rehire offers to aggrieved individuals from the 2009-2012 growing seasons; provide transportation for American workers; and limit contact between the alleged discriminating management officials and American workers.  The decree also provides for posting anti-discrimination notices, record-keeping and reporting to the EEOC.

 

The EEOC stated that "The EEOC will continue to protect the rights of vulnerable workers, such as the African American agricultural workers in this case, who were unlawfully terminated because of their race and national origin." and "Employers must ensure that their employment practices are in line with anti-discrimination laws, especially in light of the globalization of the labor force."

 

Federal law protects U.S. workers against an employer's discriminatory preferences, and we are optimistic that this resolution will go a long way in discouraging employers from discriminating against workers based on race and national origin in the hiring or firing process." 

Georgia Legal Services added, "Discrimination against American workers in the H-2A guest worker program is endemic.  We hope this case will bring attention to that problem and that we will see Hamilton Growers demonstrate to its neighbors that offering job opportunities to American workers is not only legally required, but also the right thing to do for communities and local economies."

 

The Genetic Information Nondiscrimination Act (GINA)

What employers are covered?

• Those with 15 or more employees

What are GINA’s basics?

• Prohibits discrimination based on genetic information
• Prohibits employers from collecting genetic information, with limited exceptions
• Prohibits health insurance and plans from requiring genetic testing and from discriminating based on genetic information
• Imposes strict confidentiality rules

Does GINA prohibit retaliation?

• Yes

What are potential penalties?

• Front and/or back pay
• Reinstatement
• Compensatory damages
• Punitive damages
• Attorneys’ fees

What are some employer prevention measures?

• Train employees not to gossip/discuss fellow employee genetically based illnesses
• Train employees not to gossip/discuss employee family member illnesses that have a genetic component
• Train supervisors to stop or short circuit employees who begin to discuss personal genetic information

 

Dayton Superior Corporation to Pay $50,000 to Settle EEOC Disability Discrimination Lawsuit

Dayton Superior Corporation, a nationwide provider of concrete and masonry construction products, pays $50,000 to settle a disability discrimination lawsuit brought by the EEOC.

The EEOC charged that Dayton Superior Corporation discriminated against a quality control lab technician in its Braselton, Ga., facility, by unlawfully firing her for taking medication that had been prescribed by her doctor for her bipolar disorder.  While at work, she suffered an adverse reaction to the prescribed medication and the employer required her to submit to a drug test.   Although the only substances found in her system were the medications prescribed to treat her disability, the employer immediately terminated her after the test results were revealed.  

 

The EEOC filed this case because the evidence indicated the employee was terminated because her disability required her to take medication. Making employment decisions on the basis of stereotypical assumptions about disability-based medications is one of the problems the ADA was designed to combat.

 

The consent decree settling the suit, in addition to monetary relief for the employee, includes provisions for equal employment opportunity training, reporting, and postings. 

 

Factoids

• Job candidates subject to pre-employment drug screening tested positive for illicit drugs at a greater rate in the first six months of 2012 than in all of 2011, according to Quest Diagnostics.

• The positivity rate from pre-employment urine drug screening in the U.S. general workforce increased by 5.7 percent in the first half of 2012 compared to 2011, while the positivity rate from random urine drug testing in the U.S. general workforce was down 5.8 percent.

 

401k audit mistakes

• Remitting employee deferrals late
• Miscalculating employee contributions
• Misunderstanding the service period
• Violating break-in-service rules
• Ignoring forfeiture accounts
• Disregarding participant instructions regarding tax withholding
• Miscalculating profit-sharing contributions
• Mishandling participant requests
• Misunderstanding service provider contracts
• Not following the plan eligibility requirements

 

Quotes

“Nothing is as frustrating as arguing with someone who knows what he’s talking about.”

~Sam Ewing~