Disability & Genetic Information Discrimination, Exempt Status Misclassification

September 30, 2014

 

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

October 6, Mt. Sac (Walnut), Coaching to Improve Performance, Click here for more information.

 

October 13, Mt. Sac (Walnut), How to Create and Conduct a Formal Discipline Discussion, Click here for more information.

 

October 14, Culver City, What the New Paid Sick Leave Law Will Mean to You, Click here for more information

 

October 20, Mt. Sac (Walnut), Cal-OSHA & IIPP Basics, Click here for more information.

 

November 8, Pasadena City College, Hiring Talent for Improved Performance, Click here for more information

 

November 15, Mt. Sac (Walnut), How to Create and Conduct a Formal Discipline Discussion, Click here for more information

 

November 15, Mt. Sac (Walnut), How to Build a Salary Structure & Merit Pay System, Click here for more information

 

Henderson Nursing/Rehab Center Pays $50,000 to Settle Disability Discrimination Suit

Britthaven, Inc. and its successor, Principle Long Term Care, Inc., operators of a nursing and rehabilitation center, will pay $50,000 and furnish other relief to settle a disability discrimination lawsuit brought by the EEOC.  The EEOC had charged that the companies violated federal law by discriminating against an employee who was diagnosed with breast cancer.  

 

According to the EEOC's lawsuit, after being diagnosed with breast cancer, Nicky Thomas, a cook at Britthaven of Henderson in Henderson, N.C., informed her supervisor of her diagnosis and treatment plan.  The suit further alleged that around Oct. 28, 2010, Thomas needed to take medical leave so that she could undergo surgery to treat her breast cancer.  The EEOC said that Thomas submitted a doctor's note to her supervisor, stating that Thomas was required to take leave until Dec. 10 of that year due to her medical condition.  However, the EEOC said, on Nov. 29 Thomas was informed that her request for medical leave had been denied and that she was being terminated for failing to report to work. 

 

Such alleged conduct violates the Americans with Disabilities Act (ADA), which protects employees from discrimination based on their disabilities and requires employers to provide disabled employees with reasonable accommodations for their disabilities, including medical leave necessary for treatment. 

 

In addition to the $50,000 in damages, the two-year consent decree settling the suit requires that both Britthaven, Inc. and Principle Long Term Care, Inc. revise their ADA policies. In addition, Principle Long Term Care, Inc., the entity that currently operates the nursing and rehabilitation facility, must also provide annual training to its managers and supervisors at the facility on the ADA and post an employee notice concerning the lawsuit and employee rights under federal anti-discrimination laws.    

 

Lowe’s Pays $9.5M over HR Managers’ Exempt Status Claim

Lowe’s Home Centers Inc. agreed to pay $9.5 million to end human resources managers’ class action allegations that they were not actually managers and that Lowe’s misclassified them as exempt from overtime pay requirements, according to documents filed in Florida federal court.

 

The suit, initially lodged in August 2012, asserted that the company classified its human resources managers as exempt from the Fair Labor Standards Act’s overtime requirements, but that their duties were not as sophisticated as their title suggested and they should not be classified as exempt.

 

Although given the title of manager, Lowe’s human resources managers, who number as many as 1,745, lack discretion to make meaningful decisions and do not supervise employees, the plaintiffs alleged.

 

In their motion seeking preliminary approval of the settlement, the plaintiffs said they expected Lowe’s to argue they were properly classified because the HR managers interviewed potential hires, along with 20 other job roles.

 

However; the jury would have been presented with a very complex case where some employees apparently worked contrary to standard procedures, and will claim to have spent substantial amount of their work hours involved with many routine and repetitive, typical nonexempt job duties, while spending unknown percentages of time engaged in the alleged primary job duties.

 

Founders Pavilion Pays $370,000 to Settle Genetic Information Discrimination Lawsuit

Founders Pavilion, Inc., a former Corning, N.Y. nursing and rehabilitation center, will pay $370,000 to settle a discrimination lawsuit filed by the EEOC.

 

The EEOC charged that Founders Pavilion requested family medical history as part of its post-offer, pre-employment medical exams of applicants. The Genetic Information Nondiscrimination Act (GINA), passed by Congress in 2008 and enforced by the EEOC, prevents employers from requesting genetic information or making employment decisions based on genetic information.

The EEOC also alleged that Founders Pavilion fired two employees because they were perceived to be disabled, in violation of the Americans with Disabilities Act (ADA). According to the suit, Founders Pavilion also refused to hire or fired three women because they were pregnant, in violation of the Title VII of the Civil Rights Act of 1964 (Title VII).

 

As part of a five-year consent decree resolving the suit, Founders Pavilion will provide a fund of $110,400 for distribution to the 138 individuals who were asked for their genetic information. Founders Pavilion will also pay $259,600 to the five individuals who the EEOC alleged were fired or denied hire in violation of the ADA or Title VII.

 

Pavilion Operations, the buyer of the Corning, N.Y. nursing facility, agreed as a non-party signatory to the consent decree. They will revise their antidiscrimination policies and will include specific references to genetic information discrimination, disability discrimination, and pregnancy discrimination laws and will include a complaint and investigation procedure for employee complaints of discrimination. Pavilion Operations will also provide antidiscrimination training to all of its employees.

 

"This is our third lawsuit since the enactment of the GINA law and the first one that is systemic," said David Lopez, EEOC General Counsel.  "Employers need to be aware that GINA prohibits requesting family medical history. When illegal questions are required as part of the hiring process, the EEOC will be vigilant in ensuring that no one is denied employment opportunities on a prohibited basis."

 

Factoids

• In 2011 immigrants started 28% of all new businesses but are only 12.9% of the population
• 34% of millennials participate in their company’s 401k plan. If the plan offers automatic enrollment participation jumps to 70%

 

What top leaders say are the most desired Senior Executive traits

• 68% motivate and inspire others
• 51% ability to manage change
• 46% ability to identify and develop talent
• 30% innovative thinking

 

Quotes

"Rules cannot take the place of character.”

~Alan Greenspan~