California Employment Lawyers Blog

In Southern California last week, a Los Angeles County factory employee was fatally crushed in an industrial compactor--giving the Occupational Health and Safety Administration (OSHA) great concern about the health and safety of the factory's employees.

Efren Monterroso, a 64-year old employee at the factory, was found crushed to death inside a trash compactor at the Southland factory. Investigators believe that the fatal occupational injury occured Monterroso was crushing cardboard at the factory, and ended up inside the machine when it was turned on--although the reason why Monterroso was inside the compactor when it was switched on is unknown and is under investigation. He was pronounced dead by the emergency rescue crew at the scene of the accident.

In the wake of this tragic employment fatality, questions about the safety of the machine, and the safety of workers in the factory arise. According to the California Occupational Safety and Health Act of 1973, every employer has a legal obligation to maintain and provide a safe and healthy workplace for all employees. In California, all employees have the right to work in a safe environment and not be discriminated against, or wrongfully terminated if they report safety violations. Southern California employees are protected by law, and should report safety hazards--it is illegal for an employee to be fired or retaliated against for reporting safety violations.

In a 2005 fatal occupational injury survey, conducted by the California Department of Occupational Safety and Health (Cal/OSHA), there were 38 machinery accident related deaths in California. Of these California employment fatalities, 19 workers were caught in or compressed by equipment or an object, and 6 were caught in operating equipment or machinery.

Continue reading " Southern California Worker Fatally Crushed by Cardboard Compactor" »

As California Labor and Employment Lawyers, we have been following the The Equal Employment Opportunity Commission's (EEOC) recent class action lawsuit against the Maryland-based restaurant chain Ruby Tuesday--for violation of the Age Discrimination in Employment Act, (ADEA) in the restaurant's hiring practices.

The EEOC, who enforces the federal laws prohibiting age discrimination, filed the employment lawsuit on behalf of job applicants who were 40 years and older, who allege that since January of 2005, Ruby Tuesday refused to hire them for many job positions as hosts/hostesses, wait-staff, bartenders, cooks, and dishwashers because of their age. The suit also claims that the restaurant managers were "directly or implicitly" instructed not to hire job applicants that were over the age of 40.

The suit was filed in Pennsylvania federal court, after failing to reach a voluntary settlement with the restaurant chain, and names Ruby Tuesday restaurant locations from across Pennsylvania, Indiana and Ohio. The suit also accuses Ruby Tuesday of neglecting to preserve employment records as well as employment applications for hiring-- as required by EEOC and ADEA regulations.

The EEOC is seeking to recover lost wages and liquidated damages for applicants who were refused work because of age discrimination. The lawsuit also asks that Ruby Tuesday prevent future workplace discrimination by implementing new policies, procedures, and training to staff.

Debra Lawrence, Acting Regional Attorney for the EEOC said that it is clear from this case that some companies still hire employees unlawfully based on factors such as age, rather than ability and years of proven experience.

Continue reading "Age Discrimination in Hiring Practices-- EEOC Sues Ruby Tuesday" »

Our Anaheim-based Labor and Employment Attorneys have been following the U.S. Equal Employment Opportunity Commission's (EEOC) announcement last week that the operators of a privately-owned prison in Olney Springs, Colorado, have agreed to settle in a $1.3 million practice discrimination lawsuit--for the harassment, discrimination and retaliation against female employees.

The lawsuit, filed by the EEOC in U.S. District Court for the District of Colorado, alleged that male managers at the Crowley County Correction Facility subjected 21 female workers to a hostile, sex-based working environment, where the women experienced sexual harassment, inappropriate touching, were forced to perform sexual acts, and to endure rape--in order to maintain their employment in the all-male security prison.

In once case, according to the suit, a female officer who filed a complaint about being sexually harassed by a male colleague, was forced in an isolated location, where she was raped by the man she complained about. Another female officer claimed that the former chief of the prison's security forced her to have intercourse with him to keep her job.

Women who complained about the harassment were allegedly retaliated against--by being ostracized, accused of misconduct, and assigned the most dangerous work duties in the prison. The female employees also alleged that the male workers viewed and openly flaunted pornography in the workplace, made lewd and inappropriate sexual comments about the female workers, and consistently told sexually implicit jokes.

Many of the women worked as correctional officers, including two sergeants and one lieutenant, as well as inmate educators and kitchen workers.

The EEOC reported that two male security chiefs were allowed to resign after the receiving many complaints of sexual harassment and rape against them. After the resignation of one of the Security Chiefs, his replacement was also accused of making harassing sexual comments and engaging in inappropriate touching.

Continue reading "Prison Pays $1.3 Million in Female Sexual Harassment, Retaliation Claims Settlement" »

As Southern California Employment and Labor lawyers, we were saddened to hear that a San Diego press box staff supporter for Qualcomm Stadium died this week, after falling from the press box on Monday, three hours before the kickoff of the San Diego Chargers football game.

Walter Daniels was setting up for the game between the San Diego Chargers and the Denver Broncos, when he fell down a flight of stairs, 25-30 feet below, and landed on spectator seats and concrete. Daniels, 66, had been supporting the staff in the press box for more than 20 years, worked as an official for 42 years in amateur games around San Diego County, and served on the selection committee at The San Diego Hall of Champions.

Daniels was reportedly scheduled to have hip replacement surgery, and while walking with a cane he allegedly lost his balance and stumbled down, colliding with the seats and concrete below, sustaining a fatal personal injury. The paramedics performed CPR on Daniels, and transported him to Sharp Memorial Hospital, where he died twelve hours after the accident on Tuesday morning.

The accident delayed the opening of the game by nearly 40 minutes. In a statement by the San Diego Chargers, the team expressed great sadness at the loss of Daniels. They honored his love of working in the press box on game days, and his dedication to the job.

The California Occupational Safety and Health Act of 1973 states that in California, every employer has a legal obligation to maintain and provide a healthy and safe workplace for employees. According to the fatal occupational statistics by the California Department of Occupational Safety and Health (Cal/OSHA), there were 92 construction accident related deaths in California in 2005. Of these California employment fatalities, 59 workers died due to accidents involving falls from high elevations.

Police officials and The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA), will be investigating the details of the fatal injury, and examining the current status of the stadium's workplace heath and safety to determine the cause of this accident.

If you or someone you know in Orange County or throughout Southern California has lost a loved one due to a fatal accidental in the workplace, our team of experienced California employment attorneys and professionals can help. Call us for a free consultation at 1-800-872-5925.

Chargers' Game-day Staff Worker Dies After Fall, The Los Angeles Times, October 20, 2009

Chargers' Game-day Worker Dies After Fall, Associated Press, October 20, 2009

Chargers' Worker Dies After Falling at Stadium, San Diego Union-Tribune, October 21, 2009

Fall at Qualcomm Stadium Leaves Chargers Game-day Staffer Dead, JusticeNewsFlash.com, October 22, 2009

Related Web Resources:

California Department of Industrial Relations: California Division of Occupational Safety and Health, (Cal/OSHA)

The U.S. Department of Labor's Occupational Safety and Health Administration, (OSHA)

Our Orange County, California Labor and Employment Attorneys, have been tracking the recent worker health and safety violation fines brought against CES Environmental Services, by The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA).

OSHA has fined CES Environmental Services, Inc., based in Port Arthur and Houston, Texas, a total of $207,800, for 34 alleged workplace safety health and violations, after the life of worker Charles B. Sitting was claimed, due to improper handling of the hazardous chemical hydrogen sulfide.

The most serious of the violations was allegedly "willful," and responsible for $63,000 of that total fine. The violation was based around the company's failure to create a proper rescue team to immediately respond to an emergency, if a worker becomes incapacitated during chemical tank cleanings in the confined spaces of the barges. OSHA issues "willful" citations when employers show indifference or intentional disregard for employee health and safety.

The other 32 alleged charges were classified as "serious" violations, including failure to evaluate hydrogen sulfide exposures, create proper procedures for the processing of waste stream, create procedures for contamination, and train employees on the dangers associated with enclosed space entry on the barges. According to OSHA, a "serious" violation is one in which there is "substantial probability that death or serious physical harm could result from a hazard about which the employer should have known."

The final "other-than-serious" violation was given for failure to remove liquid waste regularly.

CES performs a variety of jobs that involve industrial waste processing, cleaning of tanks, and recycling oil.

Dean McDaniel, OSHA's regional administrator in Dallas, claimed that if CES Environmental Services would have followed OSHA's standards, this tragedy could have been avoided.

OSHA's Houston Office began citing penalties of $16,600 in December of last year, after Sitting's death investigation in Port Arthur. OSHA has been investigating the death of another worker from July, that happened on the Houston site.

The two plants were closed in August, after a raid by federal agencies and the police. The company is also said to be connected to a criminal investigation involving the Houston Police Department, the Environmental Protection Agency, the Texas Parks and Wildlife Department's environmental crimes unit, and the U.S. Department of Transportation.

OSHA's goal, under the Occupational Safety and Health Act of 1970, is to promote and maintain safe working conditions for all of America's workers.

At Howard Nassiri, PC, our Labor and Employment Lawyers are knowledgeable about defending health and safety violations in the workplace, in Orange County and throughout Southern California. Contact us today for a free consultation at 1-800-872-5925.

Confined Space-Related Death Leads to $207,800 Fine for Chemical Recycler, OSHA.com, October 14, 2009

OSHA Fines Waste Processor $207,800 for Deadly Accidents, Houston Chronicle, October 10, 2009

U.S. Department of Labor's OSHA Cites Chemical Recycling Company Following a Fatality at Port Arthur, Texas, Worksite, OSHA Press Release, October 9, 2009

Related Web Resources:

The U.S. Department of Labor's Occupational Safety and Health Administration, (OSHA)

As California Labor and Employment Lawyers, we have been following recent reports tracking the rise of employee retaliation complaints with the Equal Employment Opportunity Commission (EEOC). According to EEOC data, retaliation charges rose 23% in fiscal year 2008 to 32,690--more than a third of all claims filed with the agency.

A recent article in the Wall Street Journal reported that retaliation complaints have nearly tripled since the EEOC started recording the data in 1992. The 2009 statistics aren't yet available, but according to the article, employment lawyers claim that there will be a rise in retaliation cases, especially among workers who have been laid off. EEOC officials also cite that many complaints come from laid off workers--and that retaliation is often easier to prove than discrimination, after the Supreme Court redefined a broader meaning of retaliation in 2006.

EEOC assistant general counsel Carolyn Wheeler stated that eliminating retaliation is the top priority of the commission. She claimed that in order to enforce anti discrimination laws, people need to stand up and file complaints. Said Wheeler, "If people don't feel free to do that, these laws don't get enforced."

In a recent case last month, the EEOC sued Childress Engineering Services for allegedly retaliating against a female employee, Jennifer Green. Green claimed to experience hostile and sexually explicit comments from her male colleagues throughout her employment. She made a formal complaint in January 2008. According to the EEOC, Green was chosen for layoffs a month later because she stepped up as a whistleblower. An attorney for Childress claimed that Green was laid off because of the current economic climate and because she was the newest employee with the company.

According to the EEOC website, an employer may not fire, demote, harass or retaliate against an individual employee for filing a charge of discrimination, being involved in a discrimination proceeding, or opposing workplace discrimination.

Over 25,999 retaliation charges were resolved by the EEOC in 2008, and more than $111 million were recovered in monetary benefits for aggrieved individuals and charging parties (this does not include monetary benefits received through litigation).

Our Anaheim-based Labor and Employment Lawyers know how to defend retaliation and discrimination in your Orange County or Southern California employment issue. Contact Howard Nassiri, PC today, for a free consultation.

Employer Retaliation Claims Rise, Wall Street Journal, October 6, 2009

Web Related Resources:

EEOC: Retaliation

Americans With Disabilities Act of 1990, As Amended

In recent California employment news, our Anaheim-based Labor and Employment Lawyers have been following the case of Vilma Serralta, a 71-year old California live-in housekeeper and nanny who recently filed a wage and hour lawsuit against her employers after enduring extensive state and federal wage law violations and exploitation in the workplace.

In the lawsuit, Serralta alleged that while working for Sakhawat Khan and his wife Roomy over the course of four years, she was paid between $1,000 to $1,300 a month--working 14-hour days, with no mandatory breaks, overtime, vacation or holiday time. She lived in the house with the family, and typically worked six days a week, regularly experiencing verbal abuse and a work environment that was hostile. During her employment with the Khans, they failed to keep any records of Serralta's working hours.

Originally from El Salvador, Serralta has limited English skills, and had no understanding of her rights to receive minimum wage and overtime wages until she was fired abruptly in September of 2006. While looking for new work at the San Mateo County Family Services, she was introduced to the legal services of La Raza Centro Legal, Inc. and the Legal Aid Society-Employment Law Center (LAS-ELC)--who took her employment complaint seriously, filing a lawsuit against the Khans in U.S. District Court for the violation of state and federal worker protection laws.

The San Francisco Chronicle reports that domestic workers in California are some of the most vulnerable, with frequent complaints of California employment wage law violations. In the state of California, live-in domestics are rightfully entitled to receive a minimum wage hourly rate of $8, overtime pay after a nine-hour work shift, and after a five-day work week. These rights are hard to enforce, as homes are often isolated with no other workers or witnesses. Serralta fell into this category, as she had few witnesses to corroborate her employment claim, and limited documentation of the violations.

Serralta left El Salvador in 1977, and became a U.S. citizen in 1992. According to the suit, she worked around the clock in the nearly 10,000 square-foot home--cleaning, cooking, doing laundry, dusting and vacuuming, as well as caring for their small child. Serralta had worked for domestic employers many times before, but claimed that none of the jobs were as physically and mentally demanding as her four years with the Khans. According to Serralta she would occasionally sit down for a five or ten minute break, but Mr. Khan would observe her every move, making sure she was working.

The case took an unusual turn when the Khans, who denied ever violating state or federal wage labor laws, submitted a document from 2002 that appeared to have been signed by Serralta--limiting her eligible work hours and wage entitlement. The document was proven to be fraudulent, and the judge ordered that the jury translate this act as an indication that the Khans were guilty of the alleged violations.

Continue reading "California Live-In Domestic Worker Fights for Rights and Wins Settlement" »

Our Orange County, California Labor and Employment Attorneys, have been following the recent settlement between SelectBuild, a subsidiary of Building Materials Holding Corp. (BMHC), once the nation's largest residential construction contractor, and 85 residential construction workers from California, Arizona and Nevada.

The wage and hour lawsuit was settled in a federal lawsuit last month, in the amount of $242,301 in unpaid overtime wages, to be shared between the workers.

The workers' suit was supported by the Laborers' International Union of North America (LIUNA), and claimed that BMHC Corp., as well as its subsidiaries routinely failed to compensate workers for hours worked, overtime or rest breaks, and did not pay workers for travel time between job sites, and while they waited for the arrival of materials.

The company denied all charges, but agreed to settle in the suit. In June, the company filed for Chapter 11 bankruptcy.

In a related blog post, our attorneys discussed the recent academic study surveying more than 4,000 low-wage workers in Los Angeles, Chicago and New York. The study, "Broken Laws, Unprotected Workers," exposed serious minimum wage and overtime compensation violations.

The study found that employees in residential construction and other industries, reflect a sizable population of employees who experience wage theft. The researchers also noted that the federal inspections enforcing overtime laws and minimum wage declined between 1980 and 2007, by almost one-third, while the work force in the country grew by more than half.

The study also reported that over a quarter of workers who worked more than forty hours weren't paid for the overtime during the previous week. Of these, seventy-six percent of workers were not compensated for the legally required rate by their employers. Over two-thirds of workers were forced to work through breaks.

Continue reading "California Construction Workers to receive $242,301 in Overtime Settlement" »

As California Labor and Employment Lawyers, we have been following the new California legislation signed this week by Governor Arnold Schwarzenneger, prohibiting the denial of workers' compensation insurance benefits filed by an employee who has been attacked on the basis of race, religion or sexual orientation.

The measure, AB 1093, authored by Assemblywoman Mariko Yamada, D-Davis, was initiated by the case of Taneka Talley, the Fairfield, California employee who was stabbed to death in March 2006 while working at a Dollar Tree store.

Talley was killed by Tommy Joe Thompson, a white male, while stocking shelves at the Dollar Tree. Thompson was later arrested and convicted of the murder, and according to the San Francisco Chronicle confessed during the trial that he targeted the African-American Talley and stabbed her because of her race. Because of Thompson's testimony, Dollar Tree's insurers denied death benefits to Talley's young son, citing the attack was for racial and personal reasons.

Under California state law, employers are required to pay workers' compensation benefits to employees or their surviving families for all employment-related injuries or deaths. In this case however, the Dollar Tree decided that because the attack was motivated by personal reasons, the survivors would not be covered by insurance.

Continue reading "Governor Passes California Law Protecting Workers' Compensation in Race" »

The Equal Employment Opportunity Commission (EEOC) announced last week that the commission with be playing an important role in President Obama's goal to advance equal employment opportunities for disabled workers.

Our California Labor and Employment Lawyers have been reading about the Obama administration's plan to create town hall meetings with the EEOC in four national cities, including San Francisco, California. The EEOC will help create federal regulation and hiring procedure workshops in order to give individuals with disabilities equal employment opportunities for federal jobs--opportunities that welcome the special skills, abilities, and talents of all qualified employees.

On September 30, President Obama officially proclaimed October the National Disability Employment Awareness Month, 2009. Obama's administration makes great efforts to promote change for every American, and this special disability awareness month honors the 54 million disabled people living across the country who deserve to have fair access to employment. President Obama proposed that during National Disability Employment Awareness Month, we should make a new commitment to ourselves to implement "effective policies and practices that increase employment opportunities for individuals with disabilities."

As the nation's largest employer, Obama called upon the Federal Government to set a positive example by implementing employment practices and policies that are effective in increasing opportunities for disabled workers--by helping them to grow to their fullest potential, with their own distinctive skills and qualifications.

The EEOC will also work closely with the Department of Justice (DOJ) to produce four meetings, in San Francisco, Philadelphia, Chicago and New Orleans, to discuss information and collect thoughts and comments about regulations regarding the Americans with Disabilities Act (ADA). Each meeting will hold two sessions--one for advocates on disability and one for employers.

Continue reading "Obama Champions Disability Rights--EEOC to Hold Town-Hall Meetings in California" »

Our Anaheim-based Labor and Employment Lawyers have been watching a recent case development, in which the Equal Employment Opportunity Commission (EEOC) has launched a lawsuit against McDonald's Corporation--for failure to prevent sexual harassment against a teenaged worker and other male employees in the workplace.

According to the suit, the teenager, identified in the suit as "Charging Party," was subjected to verbal and physical harassment about his appearance by a female supervisor in the fast food restaurant in a New Jersey McDonald's. McDonald's, the world's largest restaurant company, allegedly allowed the female supervisor to inappropriately touch and grab the teenager and other male workers based on their sex, without their consent.

McDonald's is being accused by the EEOC of engaging in unlawful employment practices by creating a work environment that was intentionally hostile, and entirely based on gender. The suit alleges that as a result of the female supervisor's physical and verbal treatment, the teenager and other male workers were kept from receiving equal employment opportunities in the workplace--their federally protected rights were treated with indifference, and this effected their status as a McDonald's employees.

The crimes have allegedly been taking place since August of 2007, when the "Charging Party" was 16 and 17, and McDonald's is blamed for failure to take proper action by preventing the sexual harassment of the teenager, as well as the other male employees. The suit was filed on September 30th, and the EEOC seeks a permanent injunction, to prevent this local Illinois-based McDonald's from continuing to practice sexual discrimination.

Continue reading "EEOC accuses McDonald's in Teenage Sexual Harassment Lawsuit" »

Our Orange County, California Labor & Employment Lawyers have been following a recent California wage-and-hour case, in which a lawsuit filed by former Jack in the Box employee Patricia Morgan and thousands of her night-shift colleagues has been put on hold. The delay stems from the company's recent file for Chapter 11 bankruptcy protection.

After being fired from her California job in August 2008, Morgan filed a lawsuit against the fast food chain--seeking unpaid hourly and overtime wages, and compensation for being forced to work through unpaid breaks and meal periods.

Morgan's suit names Kobra Associates, run by Jack in the Box franchisee Abe Alizadeh, as well as his three other companies--Sierra Valley Restaurants Inc., Food Service Management Inc., and Central Valley Food Services Inc. Alizadeh filed Chapter 11 bankruptcy petitions for all four companies last month, closing the doors to all of the 70 Jack in the Box restaurants that he ran in Northern California, stranding over 2,100 employees. The restaurants were then immediately reopened under bankruptcy protection from creditors, filed in the U.S. Bankruptcy Court for the Eastern District of California.

According to Morgan and her colleagues, the violation of wage laws should be accounted for, as their rights were repeatedly compromised while employed with the company. She claims in the suit that they were required to work through meal breaks during the night shift, that they were unable to leave the location, and that they were consistently overloaded with work. This was allegedly part of the Jack and the Box culture, and as employees, they were scared to report the working conditions for fear of retaliation.

Morgan's lawyers certify the case as a class-action suit on behalf of nearly 5,300 employees who have worked the night shift at Jack in the Box franchise restaurants run by Alizadeh since December of 2004. They estimate a resolution that could amount to millions of dollars of unpaid wages. The firm recently won a similar class-action lawsuit against another California-owned Jack in the Box franchise that involved nearly 30,000 night-shift workers. They were awarded $8 million in resolution.

The Sacramento Bee reports that even if Morgan and her co-workers succeed in the wage-and-hour lawsuit suit against Jack in the Box, the prospect for recovery could be seriously diminished. Alizadeh reportedly owes over $1.5 million in back state taxes, with liens against the company from the state. Morgan and her co-workers would be among the last to be paid from any remaining assets in liquidation.

If you or someone you know in Orange County or throughout Southern California has an employment or labor issue dealing with wage and hour issues in the workplace, our Anaheim-based team of experienced attorneys and professionals can help. Call us for a free consultation at 1-800-872-5925.

Jack in the Box Bankruptcies Put California Worker Lawsuit in Limbo, Sacramento Bee, September 23, 2009

Franchisee Tax Trouble Closes 70 Jack Outlets, Modesto Bee, September 19, 2009

Owner of 70 Jack in the Box Restaurants Seeks Bankruptcy Protection, The Mercury News, September 19, 2009

Related Web Resources:

EEOC

As Orange County, California Employment Lawyers, we have been following the gender-based pay discrimination case settled this week in Massachusetts Supreme Judicial Court, where $2 million in damages were awarded to Cynthia Haddad, a former Wal-mart employee. Haddad claimed in the suit that she was dismissed in retaliation from Wal-mart Stores, Inc. after requesting equal pay in the workplace.

This verdict ends a lengthy battle between Haddad and Wal-mart, who originally filed the gender-based discrimination suit four years ago.

In 2004, after a ten-year career as a pharmacist for Wal-mart, Haddad was fired. According to Wal-mart, her termination was caused by failing to leave the pharmacy secure, and giving a technician access to her computer and security codes in her absence.

Haddad alleged in the discrimination suit that she accepted a temporary management job at the Pittsfield store pharmacy, that promised to include a bonus and a raise of $1 an hour. For several months she received neither a pay increase or a bonus, and was paid less money than her male colleagues--so she reported the issue to her supervisors. Haddad claims that she was fired in retaliation after registering the gender-based pay discrimination complaint.

The Associated Press reported that in the hearing from 2007, the jury ruled in Haddad's favor, and awarded her $2 million in discriminatory damages against Wal-mart--for compensatory and punitive damages as well as emotional stress. The $1 million in punitive damages was later revoked by the judge, who cited an "insufficient basis" for the jury's decision.

The state's highest court ruled this week that the $1 million in punitive damages should be upheld, that the jury had reasonable evidence to support that Wal-mart acted with a discriminatory agenda, and that Haddad's firing was under a false pretext.

Continue reading " $2 Million Equal Pay Discrimination Case Against Wal-mart Upheld by Court" »

New legislation planned by three top Congressional Democrats was announced today, aimed to counter a Supreme Court ruling, helping employees who have experienced age-discrimination in the workplace enforce their rights.

Our California Employment Law Firm has been following this new legislation and the lawmakers' aim to restore civil rights protections for older workers. The bill was introduced by Senator Tom Harkin (D-IA), Chairman of the Health, Education, Labor and Pensions Committee, California Congressman George Miller (D-CA), Chairman of the House Education and Labor Committee, and Senator Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee.

This proposed legislation comes in response to the U.S. Supreme Court's ruling in Gross v. FBL Financial Services in June--where employees claiming discrimination under the Age Discrimination in Employment Act, must prove that age was the deciding factor in the employment decision, rather than other reasons, such as cutting costs or job performance. In Gross, the Supreme Court rewrote civil rights laws, making it difficult for employees to enforce their rights, and win age-discriminations suits.

Harkin stated that this country has had years of consistent standards, based on age, sex, race, national origin, or religion. The court ruling set a higher standard for proving age discrimination--forcing victims to face more of a burden in proving discrimination than victims alleging other types of discrimination. Harkin commented that by introducing the Protecting Older Workers Against Discrimination Act, all older workers in this country can once again experience full rights and protections under the law.

This Act would restore the law to what it was prior to the Supreme Court decision on Gross--when a victim shows age discrimination to be a motivating factor in an employment decision, the employer must show compliance with the law, and take responsibility. Preserving the Age Discrimination and Employment Act is modeled on the Civil Rights Act of 1991--where the "motivating factor" framework was established in sex, national origin, race and religion discrimination claims, under Title VII of the Civil Rights Act of 1964. Supported by the AARP, the Leadership Conference on Civil Rights, the National Senior Citizens Law Center and the National Women's Law Center, This Act provides an anti-discrimination and anti-retaliation legal structure under which all employees can be treated fairly, and all forms of discrimination, recognized equally.

Continue reading "Age Discrimination Legislation Challenges Supreme Court to Protect Older Workers" »

According to a report released last week by Public Employees for Environmental Responsibility, (PEER), the national alliance of local, state, and federal resource professionals, The U.S. Occupational Safety & Health Administration (OSHA) has reduced the number of health inspections in the workplace, despite more employee exposure to hazardous and toxic substances.

As California Employment and Labor Lawyers, we have been watching this report, in its aim to protect the health and safety rights of employees in the workplace. The PEER report states that exposures to toxic substances are connected to 10 times more premature deaths of workers than all accidents in the workplace combined. OSHA currently allocates less than 5% of its already scarce funding on protecting employee health in the workplace.

PEER discovered that the eighth leading cause of death in the US is occupational exposure--with premature deaths totaling more than 40,000 per year from neurological disease, cancer, cardiopulmonary disease, and other illnesses. According to an analysis of OSHA figures, there has been a decline in health inspection since 1991.

The report details that:

• OSHA's exposure inspections are declining. OSHA took roughly 53,000 national samples in 1997, as compared to the number samples taken in 1988--three times as many.

• At this present chemical exposure inspection rate, OSHA would need nearly 600 years or more to inspection just half of the nation's industrial facilities, where hazardous and toxic substances are handled.

• Officials in the Obama administration have not yet taken steps to change this direction, and continue to push for the quantity of completed inspections. According to the report, this gives inspectors "disincentive" to perform toxic-substance sampling, as it can often take multiple days to complete--whereas an inspector can perform several construction safety inspections in one day.

PEER is a non-profit national alliance, acting as a "watch-dog" for public interest. These figures were uncovered by PEER Board member and former director of health rulemaking for OSHA, Dr. Adam Finkel. Finkel obtained the figures from the preliminary analysis of a massive exposure measurements database for all federal and state inspections.

Finkel stated that while the EPA has lowered concentrations of harmful substances in homes across the country, workers are still exposed to extreme levels of the same harmful substances in the workplace.

Continue reading "OSHA's Decline in Workplace Health and Safety Inspections" »

The U.S. Equal Employment Opportunity Commission (EEOC) announced this week the approval of a consent decree by Federal District Judge Wayne Andersen, resolving the $6.2 million lawsuit against Sears, Roebuck and Co. under the Americans With Disabilities Act (ADA)--the largest ADA single lawsuit settlement amount in EEOC history.

As Orange County, California, Employment Lawyers, we have been following this case--and the EEOC's fight to uphold the American's With Disabilities Act, protecting employees from disability discrimination in the workplace.

According to the EEOC's press release, the class action lawsuit was filed in 2004, accusing Sears of providing an inflexible worker's compensation leave exhaustion policy, as well as terminating employees without attempting first to provide reasonable accommodations for their disabilities.

John Rowe, Chicago District Director for the EEOC, claimed that this class action lawsuit stemmed from a discrimination charge filed by John Bava, a former technician at Sears. Bava sustained an injury while working at an Illinois- based Sears, and took a worker's compensation leave of absence. Although still injured from the job, Bava tried to return back to work repeatedly. Instead of giving Bava a possibility for returning to work with his disability, Sears terminating his job when his worker's compensation leave expired.

John Hendrickson, Regional Attorney of Chicago District's EEOC Office, stated in the EEOC press release that prior to the trial, hundreds of employees in similar circumstances were discovered--workers who had also taken leave for disability, and were fired by Sears--not reasonably accommodated as required by ADA law. Many of these employees only discovered that they had been fired, after their discount cards were rejected while shopping at local Sears retail stores.

Along with the $6.2 million settlement, the consent decree includes an injunction against violating the ADA, as well as retaliation. Sears will also be required to change its workers compensation leave policy, provide the EEOC with written reports detailing workers compensation practices as well as ADA employer compliance, make the decree visible at Sears locations, and train all employees on ADA law.

Stuart Ishimaru, the EEOC's acting chairman stated that this case proves that after nearly twenty years of the ADA enactment, the rights of individuals with disabilities in the workplace are still compromised. He also claimed that this record-setting settlement sends a strong message that the EEOC will protect workers' rights and advance equal employment opportunities for disabled individuals.

Sears, Roebuck to Pay $6.2 Million for Disability Bias, EEOC Press Release, September 29, 2009

EEOC Reaches $6.2M Disability Settlement with Sears, Business Insurance.com, September 29, 2009

Sears Roebuck Agrees to Record $6.2M ADA Settlement with EEOC, ADA Journal.com, September 29, 2009

Related Web Resources:

EEOC

Americans With Disabilities Act of 1990, As Amended (ADA)

Continue reading "Sears, Roebuck Settles in Record $6.2 Million Disability Discrimination Lawsuit with EEOC" »