Employer Guidance for Swine Flu

What should employers do to prepare for flu outbreaks?

Employers are responsible for providing a safe and healthful workplace for their employees. Planning for pandemic influenza by business and industry is essential to minimize a pandemic's impact. Having a contingency plan is essential.

The US Department of Occupational Health and Safety has issued guidance for employers, called Preparing Workplaces for an Influenza Pandemic.

This guidance contains helpful information, such as:

How to Maintain Operations During a Pandemic

How Organizations Can Protect Their Employees

Steps Every Employer Can Take to Reduce the Risk of Exposure to Pandemic Influenza in Their Workplace

See OSHA's full guidance here.

Americans Oppose Forced Employment Arbitrations

Workers should not be denied their right to a jury trial. . . when their employers violate the law, especially if they don't even know that they are giving up that right just to work. Kudos to The Institute for highlighting this issue.

According to a study unveiled in D.C. today:

A majority of Americans opposes the practice of forced arbitration, the survey of 800 likely voters nationwide found.

59% oppose forced arbitration clauses in the fine print of employment contracts and consumer contracts, including both men and women and majorities of Democrats, independents, and Republicans.



59% support the Arbitration Fairness Act. Support for the Act also crosses traditional gender and political divides.



Most Americans are unaware of the rights being taken away from them. Roughly three-quarters of Americans believe they can sue an employer or company should they be seriously harmed or have a major dispute arise - even if they are bound by forced arbitration terms.



Approximately two-thirds cannot remember seeing anything about forced arbitration in Terms of Employment or Terms of Agreement for goods and services.



The Employee Rights Advocacy Institute For Law & Policy (The Institute), in collaboration with Public Citizen, will unveil findings of a National Study of Public Attitudes on Forced Arbitration at a press conference today on the Arbitration Fairness Act in Washington, DC.

The study is based on a major national survey on mandatory arbitration of employment and consumer claims conducted by Lake Research Partners, one of the most respected national public opinion and political strategy research firms in the country.

This important research was made possible by a grant from The Public Welfare Foundation.



The Institute is pleased to release this study on the day it launches its web site at www.employeerightsadvocacy.org.



Download the National Study of Public Attitudes on Forced Arbitration.



The Employee Rights Advocacy Institute For Law & Policy is the related public interest organization of the National Employment Lawyers Association (NELA).

Honoring Columbine

May your Angels comfort you during this time, dear Columbine. Remember with love the souls who shared our journey. Their love lives.

Laid Off? Picking Up the Pieces

Picking Up the Pieces When You Find Yourself Jobless . .

is a great article by Rachel E. Pine. Here's a blurb:

"It's not fun. It's not easy. It's certainly not something people like to think about. But companies can and do go belly-up. Flop. Fold. Cease to exist. And other companies can and do lay off even their most loyal and talented employees. For the now formerly employed employee it's time to do some quick thinking and planning. Mourning with your co-workers may be cathartic, but it will only make you feel better for a couple of hours. After that you'll need to make some pretty quick decisions about medical coverage, severance, outplacement, recruiters, referrals and unemployment insurance. But relax, really. Things may be much better than you think."

Pine then hits seven specific steps the newly unemployed might consider, from ideas on medical coverage, to getting reimbursements for expenses, to gathering information for unemployment insurance. Take a look at her full article here, as originally found on Vault.com.

I would add to her tips that a good employment lawyer can be invaluable in helping workers to review severance agreements, negotiate favorable terms, avoid the potential pitfalls, and explain responsibilities and legal rights.

There is hope for a brighter future.

Layoff Reality Show?

Struggling companies to let employees ax each other on national television?


The National Law Journal reports of a proposed new Fox show called Someone's Gotta Go in which actual, struggling companies with about 15 to 20 employees will let their staffs decide who gets laid off. The employee-judges will use confidential information — salaries, job evaluations — to make that final call on the show.

Has reality TV gone too far? I wonder whether they will educate these employees about employment discrimination laws and employers' legal obligations to employees before they let them hand out the pink slips.

Thanks to The Workplace Prof Blog for the tip!

EEOC Wins $267,000 in Sexual Harassment Suit

“Sexual harassment is the toxic waste of the workplace."

These words, spoken by EEOC Regional Attorney Mary Jo O’Neill, came on the heels of the EEOC's victory this week in a federal court sexual harassment case against Sunfire Glass, Inc. According to the EEOC:

A federal district court today entered a Federal Court Judgment for over $267,000 and significant injunctive relief in favor of the U.S. Equal Employment Opportunity Commission (EEOC) in a discrimination lawsuit against Sunfire Glass, Inc. The EEOC’s suit charged that the company’s owner subjected a class of female employees to severe physical and
verbal sexual harassment in violation of federal law.

Judge Lawrence O. Anderson found that Sunfire owner Paul
McBride sexually harassed two female glassblowers by touching the women on their breasts and between their legs, hitting the women on the buttocks, making obscene gestures, and verbally harassing the women by talking about their bodies and using vulgar language. At times, the court also found McBride would touch the women while they were working with hot glass and were unable to defend themselves against McBride’s advances. The two women, Tineke Meyer and Karina Mercado, complained repeatedly to management, and no action was
taken. As a result of the abuse, both Meyer and Mercado were forced to resign.

The EEOC’s suit (EEOC v. Sunfire Glass, Inc., Civ. 08-1784 PHX-LOA) was filed in U.S. District Court for the District of Arizona in September 2008. Despite receiving notice of the lawsuit, McBride failed to submit an answer to the litigation or otherwise appear in the case, and the court entered a default judgment against the company.

The court, in making very specific findings of fact and conclusions of law, awarded Tineke Meyer the equitable remedy of back pay plus
prejudgment interest through March 12, 2009, in the sum of $60,287; compensatory damages in the sum of $50,000; and punitive damages in the sum of $50,000; totaling $160,287 in damages against Sunfire Glass, Inc. The court also ordered post-judgment interest at the legal rate until paid in full. Additionally, the court awarded Karina Mercado the equitable remedy of back pay plus prejudgment interest through March 20, 2009, in the sum of $6,781; compensatory damages in the sum of $50,000; and punitive damages in the sum of $50,000; totaling $106,781 in damages against Sunfire Glass, Inc.

For more information about this case see the EEOC's press release.

Hospitals Face Dip in Employment

Hospitals Hit With Layoffs

For the first time since the recession began in December 2007, hospitals posted a decline in employment, following waves of mass layoffs that spiked in September and have remained higher than normal ever since, according to a Workforce Management report.

The health care sector overall grew in March by 13,500 jobs, a slowdown from the average growth rate of 30,000 jobs per month in 2008, as reported by Workforce Management.

Most of the growth was in ambulatory health care services, including physician offices, which added 3,200 workers in March, a gain of more than 0.1 percent for a workforce that stands at 2.31 million, according to the report.



See Joe Carlson's full article at Workforce Management.

Twitter in the Courtroom?

Colorado judge allows reporter to Twitter in the Courtroom.

Today while researching the Twitter phenomenon, I ran across an interesting blog, Social Media Law Student, a blog by Rex Gradeless. Here's a blurb from his blog, Colorado Judge Allows Twitter In Courtroom:

The courtroom now includes Twitter.

What? Twitter inside the courtroom?

Yes, it’s true. A Colorado judge recently approved
the use of Twitter, and blogs, inside the courtroom to
cover an infant-abuse trial.

Wichita Eagle (Kansas) reporter, Ron Sylvester, pushed for the court to allow the use of Twitter for his courtroom reporting.

Sylvester argued courts are open to the public and the process of reporting with Twitter is similar to writing a story for a newspaper.

However, the major difference in the two mediums is the speed
at which the information would be released (Twitter being more
immediate).

This was not the first time Sylvester has reported via
Twitter from inside the courtroom. In fact, Sylvester’s Twitter
page seems to indicate he frequently reports from inside the courtroom using
Twitter.

Lawyers should learn more about these new social media
technologies because they are finding ways inside the
courtroom.

[Some] judges are now, at least in Colorado, allowing reporters to
use Twitter to report live.

The rise of Twitter will mean the rise of more reporters
like Sylvester sitting our nation’s courtrooms.

Thanks and kudos to Gradeless and Ernest Luning for reporting on this development. For more detail about the Judge's rationale, see Ernest Luning's article about the Colorado case allowing Twitter in the Courtroom. The original story by Ernest Luning 1/5/09 4:54 PM; The Colorado Independent, can be found at the Colorado Independent here.

EEOC Subpoenas Colorado Car Dealership for Sexual Harassment Charges

A Colorado auto dealership's failure to respond to a federal agency's sexual harassment investigation has landed it in federal court.

According to court papers, Empire Lakewood Nissan in Aurora did not answer subpoenas from the US Equal Employment Opportunity Commission investigating charges of sexual harassment.

A female dealership employee alleged that Empire Lakewood Nissan terminated her after she made reports of sex discrimination and sexual harassment. She claims male employees called her derogatory names and placed offensive graffiti about her at the dealership. Several male employees undermined her authority by refusing to take work assignments from her, according to the EEOC.

The EEOC claims the dealership failed to take appropriate action against the harassers. When Empire Lakewood Nissan did terminate the primary harasser, the dealership also terminated the female employee, citing a "lay off" of one person. The dealership then hired someone else to fill her position, even though she had volunteered to cut her hours to keep her job, according to court papers.

The EEOC subpoenaed the dealership, seeking documents reflecting complaints of harassment and what action was taken in response to them, but Empire Lakewood Nissan failed to respond.

United States District Judge Christine M. Arguello has ordered Empire Lakewood Nissan to appear in federal court on April 20, 2009, to show cause as to why it should not be compelled to comply with the EEOC's subpoena.

Employers should take a lesson from this case and take EEOC requests for information seriously. In many cases, these matters can be resolved with the EEOC before any lawsuits are filed, but ignoring an EEOC subpoena can land employers in federal court.

Employers can find information on responding to EEOC investigations at http://eeoc.gov/employers/investigations.html.

Youth At Work

Check out Youth@Work, a website for youth in the workforce by the United States Equal Employment Opportunity Commission.

The EEOC's goal is to eliminate illegal discrimination from the workplace for all workers.


The Youth@Work website is designed to teach young workers about some of their rights and responsibilities as employees.

There are links to learn about different types of discrimination affecting young workers and what they can do to help prevent discrimination in the workplace.


Be an informed employee - Know your real world rights and responsibilities!

Female Firefighter Subjected to Urine and Straight Pins?

The Dallas fire department has a new kind of fire to contain.

The highest-ranking civilian woman at Dallas Fire-Rescue is alleging that she was demoted recently after complaining about lewd e-mails and sexual harassment from higher-ups, according to The Dallas Morning News.

Leanne Siri filed a federal complaint with the U.S. Equal Employment Opportunity Commission on Friday. Another female firefighter reportedly filed an EEOC complaint alleging men urinated on her bedding and placed straight pins in it.

Sexual harassment is not always sexual in nature. It's not always about sexual innuendo or requests for sex. It's not always about grabbing and groping.

Illegal harassment comes in many forms, including non-sexualized bullying directed at someone simply because she is a woman. If the bullying is severe enough or pervasive enough to change the terms and conditions of employment, it doesn't matter if the harasser even acted in a sexual manner.

If female firefighters are being demoted for reporting harassment, the city should take the retaliation claims extremely seriously. Also, if it's true, urinating on the female firefighter's bed and needling it with straight pins sounds severe or pervasive to me, does it to you?

I'm not handling this particular case, but out of curiosity, what might you consider awarding if you were a juror and you believed she had proven that all of the allegations were true?

EEOC Violated Federal Pay Law, Rules Arbitrator

The Equal Employment Opportunity Commission has willfully violated federal pay laws with its own employees on a nationwide basis, an arbitrator has ruled.


The EEOC is responsible for ensuring that the nation's workers are treated fairly. But its practice of offering compensatory time off to its employees, rather than overtime pay, amounted to "forced volunteering" and was a knowing violation of the federal Fair Labor Standards Act, according to the ruling. The EEOC does not enforce the FLSA.

The ruling comes as the EEOC handles an "unprecedented" level of discrimination charges, according to The Washington Post: "In 2008, the EEOC received more than 95,400 charges of job bias in the private sector, up 26 percent from 2006. But over the past eight years the EEOC has lost about 25 percent of its staff, including investigators and lawyers who handle the cases." The EEOC may be required to pay back wages to employees.

The union representing EEOC employees said the decision lends credence to its frequent complaint that the EEOC is understaffed and overworked, according to the Post. For more information see Steve Vogel's article in The Washington Post.

Same-sex couples may marry in Iowa

"We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective.

The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification."

These words, written by the Iowa Supreme Court, confirm the Iowa Constitution's promises of liberty and equality. The Iowa Supreme Court unanimously ruled this morning that same-sex couples must be allowed to marry in Iowa.

The Iowa Supreme Court is the fourth state high court to rule that excluding same–sex couples from civil marriage is unconstitutional, after Massachusetts, California, and Connecticut.

According to Lambda Legal:

Lambda Legal filed this case in 2005 on behalf of six same–sex couples who were denied marriage licenses in Iowa, and on behalf of three of their children. Dawn and Jen BarbouRoske of Iowa City are one of the wonderful plaintiff couples. They have been together more than 18 years and have two children, McKinley and Breeanna. After Jen delivered McKinley eight weeks early, they realized that Dawn could be prevented from being with their daughter in the hospital because she was not legally related to either Jen or the baby. Because they were not married, they had to leave their daughter in the neonatal intensive care unit at the hospital to seek the help of an attorney. This experience drives home just how important it is to be able to marry.

For more information on Lambda Legal and this ruling, see Lambda Legal's website.

Religious Discrimination Lawsuits Settle for $365,000

"Employers need to recognize the increasing diversity of religion in our country and provide accommodations as required by federal employment discrimination laws."

These words, spoken by EEOC Acting Chairman Stuart J. Ishimaru, confirm workers' rights to freedom from religious discrimination at work. This week, the EEOC settled two religious discrimination lawsuits against a leading chicken processor, Gold’n Plump Poultry, Inc., and an employment agency, The Work Connection.

"The Pork Form." Applicants were required to sign a form stating that they would not refuse to handle pork in the course of their jobs in order to be referred for work at Gold’n Plump’s facilities, according to the EEOC. In addition to stopping use of the “pork form,” The Work Connection will provide each of the 28 class members, job seekers previously turned away for refusing to sign the “pork form,” with an offer for placement at Gold’n Plump.

Prayer Break Added. Gold’n Plump will add a paid break during the second half of each shift which will accommodate the religious beliefs of Muslim employees who wish to pray in the course of the work day. The break is in addition to a break early in the shift and lunch breaks which are required by law. The timing of the added break will fluctuate during the year to coordinate with the religious timing for Muslim prayers. The new break times will apply to all who work in a designated portion of the plant, regardless of religious faith.

Monetary Damages. Gold’n Plump also will provide $215,000 to a class of 128 Somali American Muslims who claimed religious discrimination, discharge and discipline. An additional $150,000 will be paid to 28 class members.

"My Way or the Highway." EEOC Trial Attorney Nick Pladson added, “When employees identify aspects of their religious beliefs that conflict with their employment, employers must engage these workers to explore solutions. Employers who take a ‘my way or the highway’ approach to requests for religious accommodation clearly do so at their peril.”

The EEOC has issued a new Compliance Manual Section regarding religious discrimination, harassment, and accommodation, in response to an increase in charges of religious discrimination, increased religious diversity in the United States, and requests for guidance from stakeholders and agency personnel investigating and litigating claims of religious discrimination.

Churchill Wins $1 Jury Verdict for Wrongful Termination

Former University of Colorado Professor Ward Churchill won his wrongful termination case against the school, but the jury awarded only $1 in damages.

According to 9News,

The jury ruled in Churchill's favor today, deciding that when he was fired in 2007 it was because a majority of CU's Regents were responding to political pressure stemming from outrage over an essay he wrote after the Sept. 11, 2001 terrorist attacks. In the essay, he compared Sept. 11 victims inside the World Trade Center towers to an infamous Nazi. CU had maintained the ethnic studies professor was dismissed for plagiarism and academic misconduct. The jury also ruled Churchill would not have been fired over the plagiarism and academic misconduct allegations alone. The judge will now decide whether Churchill will return and begin teaching at CU again. His attorney, David Lane, says that is what Churchill wants. Lane says if CU opposes, there will be a hearing.

Some might call this a bittersweet victory for Churchill. But the case is not over yet. See the rest of the great 9News reports and Churchill trial coverage.

Pregnancy Discrimination Case Settles for $300,000

Working women should not be penalized or treated differently than other employees simply because they are pregnant.

EEOC Regional Attorney Lynette A. Barnes made this statement and further confirmed that the EEOC "will continue to vigorously enforce workplace civil rights laws to remedy and eradicate pregnancy discrimination."

The EEOC this week announced the settlement of a pregnancy discrimination lawsuit against Britthaven, Inc., a nursing home and assisted living chain.

The EEOC charged that Britthaven discriminated against pregnant workers. Upon learning that an employee was pregnant, the company required her to obtain full medical clearance in order to continue working.

As a result of this practice, Katherine Hance and other pregnant women were forced to take medical leave or were terminated despite the fact that they were fully capable of performing their job duties.

“Employers must remember that paternalistic attitudes toward pregnant employees that result in unequal treatment at work violate federal law," Barnes added.

Britthaven will pay $300,000 in back pay and compensatory damages. Britthaven also is prohibited from engaging in pregnancy discrimination or retaliation. The company will provide anti-discrimination training, the posting of a notice about the EEOC, and reports to the EEOC so that the agency can monitor requests for medical clearance made by the company.

It's good for Britthaven that this case settled - juries do not like pregnancy discrimination.

DOL Emergency Grants for Flood and Recovery Jobs

The U.S. Department of Labor assists in recovery efforts in the communities affected by floods. For general questions and assistance, please contact DOL's National Contact Center at 1-866-4-USA-DOL (1-866-487-2365)

The Department of Labor support includes the following income and job assistance:

National Emergency Grants

• National Emergency Grants (NEGs)
  Impacted states can apply for NEG funds that can be used to temporarily employ dislocated workers. These funds can be used to employ workers on projects that provide food, clothing, shelter and other humanitarian assistance for disaster victims. Learn how to apply for a National Emergency Grant.