Now may be a good time to review your Employment Practices Liability Insurance (“EPLI”) Policy to ensure coverage is available when the EEOC comes knocking on your door.  In an order entered on September 16, 2011, the U.S. District Court for the Middle District of Tennessee found that based upon the plain language of the policy, Cincinnati Insurance Company (“Cincinnati”) did not have a duty to either defend or indemnify Cracker Barrel in a lawsuit brought by the EEOC because the policies at issue only covered lawsuits brought by employees.  Cracker Barrel Old Country Store, Inc. v. Cincinnati Insurance Company.             The EEOC’s lawsuit arose out of ten EEOC Charges filed by Cracker Barrel employees over the course of three years.  After suit was filed, Cracker Barrel provided notice to Cincinnati, who was Cracker Barrel’s EPLI carrier.  Cincinnati denied coverage.  Cracker Barrel ultimately settled the lawsuit on its own for…       Read More

Everyone knows about Facebook and its kin and the ease In which you can post information to keep your friends, family, and, often times, complete strangers up to date with your life. You know, the places where millions of people gather to share photos; “Like” people, places and things; go from being “in a relationship”, to “it’s complicated” and ultimately “single” all in a few clicks of your mouse. While Facebook is generally all about sharing with those whom you consider friends or family, what about sharing with those not exactly considered either. What about people that you would not want to have the information at all? What about “opposing counsel”? With the connectivity of the World Wide Web, you have to ask yourself, how private is the information that I share on social media sites? Could a Judge order you to provide access to others regarding your personal thoughts,…       Read More

Tyson Fresh Meats, Inc. has agreed to settle allegations of sex discrimination brought by the Department of Labor’s Office of Federal Contract Compliance Programs.  Under this agreement, Tyson will pay $2.25 million in back wages, interest and benefits to more than 1,650 qualified female job applicants who were rejected for employment at various Tyson facilities.             Tyson has several federal contracts to provide food for the U.S. Departments of Defense and Agriculture.  As a federal contractor, they are subject to compliance reviews to determine if they are discriminating in employment on the basis of sex, color, religion, national origin, disability or status as a protected veteran.  It was during a compliance review that evidence of discrimination was uncovered.  In addition to the monetary payment, Tyson will undertake extensive self-monitoring and corrective measures to insure that its employment practices comply with the law. Post by: Richard N. Sheinis

              Many employers use software programs to monitor their employee’s use of company computers.  A recent case in Indiana highlights how this can get an employer in trouble if they do so improperly.  In Rene v. G.F. Fishers, Inc., 2001 U.S. Dist. LEXIS 105202, (September 16, 2011), the company installed software to record all keystrokes made on the employee’s computer.  They did not, however, inform the employee of this software until after the employee had used the computer to access her personal checking account and her personal e-mail.             Using this software, the employer acquired the employee’s password and her checking account password.  The employer then used these passwords to access and view the employee’s personal e-mails and checking account.  Obviously, an unsavory practice by the employer!             The employee filed suit making several claims, one of which was a violation of the Stored Communications Act (SCA).  The court refused…       Read More

On September 14, 2011, Bank of America was ordered by OSHA to reinstate an employee and pay approximately $930,000 dollars in back wages, interest, compensatory damages and attorney fees to an employee that was fired in violation of the whistleblower protection provisions of the Sarbanes-Oxley Act.  The employee led internal investigations that revealed widespread wire, mail and bank fraud involving employees of Countrywide Financial Corp., which merged with Bank of America in 2008.  The employee found that those who attempted to report fraud to Countrywide’s Employee Relations Department suffered persistent retaliation.  The employee was fired shortly after the merger.  OSHA, which enforces the whistleblower provisions of the Sarbanes-Oxley Act found that Bank of America used illegal retaliatory tactics against this employee who had reported potential fraud.   Bank of America has 30 days to appeal the ruling to the Department of Labor’s Office of Administrative Law Judges. Post by: Richard N….       Read More

Can job applicants claim they were discriminated against because of a long history of unemployment? No, but the law could be changing. Subtitle D of the proposed Americans Jobs Act incorporates a previously introduced bill that would allow civil discrimination lawsuits to be brought by applicants claiming that he/she was not hired because of a history of unemployment. The Fair Employment Opportunity Act of 2011 would prevent employers and employment agencies from refusing to consider or offer a job to an unemployed individual; prohibit the publication in any medium of an advertisement or announcement for a job that includes language indicating the unemployed need not apply; and entitle those discriminated against to bring a civil action against the employer or employment agency for actual, compensatory and punitive damages. While this provision of the President’s job plan is not likely to be passed, the Equal Employment Opportunity Commission held a Public…       Read More

The Atlanta Journal reports that The U.S. Department of Labor fined a Georgia restaurant chain (This Is It! BBQ and Seafood) $104,000 in back pay for improperly classified workers who should have been receiving overtime pay and fined the restaurant $1,900 for allowing minors to work longer each day than allowed by federal regulations. The employer also allegedly failed to keep required records of tips earned and hours worked. I. CHILD LABOR HOURS Workers under the age of 16 were allowed to work later than 9 p.m. between June 1 and Labor Day and later than 7 p.m. during other parts of the year. Under the FLSA, permissible work hours for 14- and 15-year-olds are: 3 hours on a school day; 18 hours in a school week; 8 hours on a non-school day; 40 hours in a non-school week; and Between 7 a.m. and 7 p.m., except from June 1…       Read More

The EEOC has wasted little time in taking advantage of the Americans With Disabilities Act Amendment Act (“ADAAA”).  In the last days of August the EEOC filed 15 discrimination suits against major companies, three (3) of which allege allegations of violations of the ADAAA.  As expected, these new cases do not focus on whether the employee was disabled, but whether the employer made a reasonable accommodation. In a case against Ford, an employee with irritable bowel syndrome was refused permission to telecommute.  The company then began criticizing the employee’s performance.  Eventually she was fired. The second ADAA case was against Kohl’s, a chain of department stores.  The allegation is that Kohl’s would not accommodate a request from a diabetic employee for a regular work schedule. She was then forced to quit her job. The third case was against SITA, an air transport communications company.  A job applicant received an offer…       Read More