Thursday, February 28, 2013

Fired whistleblower sues Sacramento diocese

The Sacramento Bee

By Suzan Phan

ACRAMENTO, CA - A head football coach at a Catholic high school in Vallejo has filed a wrongful termination lawsuit against the school and the Roman Catholic Diocese of Sacramento.

Chris Cerbone and four other coaches were fired last month, and five football players were expelled after reporting sexual abuse and hazing on the team. Now Cerbone is filing suit.
He said he reported the alleged abuse because he wanted to stop it and to protect the students from any further harm. He says it was a complete shock to be fired for doing the right thing.
"I found out about it. I did the right thing. I reported it. I'm the one who's without a job," said Cerbone last month after being fired from St. Patrick-St. Vincent Catholic High School.
Back in December, Cerbone heard freshman players say varsity football players were hazing them in a school locker room.
He claimed he heard players were exposing their genitals to harass younger teammates.
Cerbone, who also happens to be a former New York police officer, reported that to Child Protective Services, a chaplain, and then the principal.
Not long afterward, he got word that he was being terminated.
Cerbone claims he was fired in retaliation for reporting sexual hazing.
"We didn't make a personnel decision based on him being a whistleblower," said Kevin Eckery, Sacramento diocese spokesman.
The diocese says Cerbone was not fired because he reported the hazing incident but because he failed to properly supervise his players.
"We made a personnel decision based on other factors, including that he was ultimately responsible for the football program and that's where this problem was," Eckery said.
Cerbone's attorney, David Lowe, said, "This is a classic case of whistleblower retaliation. The diocese should be ashamed of its role in firing a teacher for reporting sexual abuse."
The suit alleges Cerbone suffered defamation, wrongful termination and retaliation, and it seeks lost wages, emotional distress damages, punitive damages and attorneys' fees and costs.
Cerbone said there was hazing on the team even before he became coach last summer.
But, he said the first time he learned of the hazing, he reported it.
He believes he did the right thing reporting the alleged abuse and he stands by his lawsuit.

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Wednesday, February 27, 2013

US Labor Department rescinds restrictions on investigating pay discrimination

OFCCP News Release: [02/26/2013]
Contact Name: Mike Trupo or Joshua Lamont
Phone Number: (202) 693-6588 or x 4661
Release Number: 13-0305-NAT

WASHINGTON — The U.S. Department of Labor today announced that its Office of Federal Contract Compliance Programs is rescinding two enforcement guidance documents on pay discrimination originally issued in 2006, commonly known as the "Compensation Standards" and "Voluntary Guidelines."This action, to be effective Feb. 28, is intended to protect workers and strengthen OFCCP's ability to identify and remedy different forms of pay discrimination. It will enable OFCCP to conduct investigations of contractor pay practices consistent with Title VII of the Civil Rights Act of 1964.
"A strong American middle class hinges on ensuring equal pay," said acting Secretary of Labor Seth D. Harris. "As President Obama has made clear, everyone – including the wives, mothers, sisters and daughters among us – must be paid fairly and without discrimination. These new standards will strengthen our ability to ensure that women and men are fully protected under our nation's laws."
The notice of final rescission withdrawing these two documents also includes new guidance for employers and other interested stakeholders setting forth the procedures, analysis and protocols OFCCP will utilize going forward when conducting compensation discrimination investigations. OFCCP will supplement the guidance with frequently asked questions, technical assistance, webinars, and other resources and materials to ensure that contractors have ample information about how to comply with the law.
"Today, we are lifting arbitrary barriers that have prevented our investigators from finding and combating illegal pay discrimination," said OFCCP Director Patricia A. Shiu, a member of the President's National Equal Pay Task Force. "At the same time, we are providing clear guidance for contractors to facilitate their success when it comes to providing equal opportunity to all of their workers."
The new approach described in the notice will enable OFCCP investigators to better examine practices and available evidence to uncover discrimination and evaluate contractor compliance with Executive Order 11246. That longstanding executive order requires federal contractors to comply with antidiscrimination obligations, including prohibitions against pay discrimination. Prior to this action, OFCCP was constrained by a methodology adopted in 2006 that made it harder for the agency to exercise its full legal authority because it required use of the same narrow formula to review all contractor pay practices, regardless of the industry, types of jobs, issues presented or available data. Now, OFCCP will be using its legal authority to hold contractors to the same legal standards – enshrined in Title VII, the landmark civil rights law – that courts and other federal agencies already apply to these businesses to prohibit job discrimination.

In addition to Executive Order 11246, OFCCP enforces Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans' Readjustment Assistance Act of 1974. As amended, these three laws require those who do business with the federal government, both contractors and subcontractors, to follow the fair and reasonable standard that they not discriminate in employment on the basis of sex, race, color, religion, national origin, disability or status as a protected veteran. 

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EEOC files discrimination Suit against transportation firm

The U.S. Equal Employment Opportunity Commission said Tuesday that it filed a lawsuit against Prestige Transportation Service for hiring discrimination.
According to the suit, Prestige refused to hire black applicants for employment, discriminated against a black employee and retaliated against three employees for opposing race discrimination and/or filing a discrimination charge with the EEOC.
The lawsuit also says that Prestige unlawfully destroyed or failed to keep records and documents related to employment applications, personnel records, and documents regarding rates of pay and other terms of compensation.
Prestige, based in Miami, primarily transports crew members of airlines between airports and their hotels. Executives could not be reached for comment late Tuesday.

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Tuesday, February 26, 2013

Sonoma County Association of Retired Employees v. Sonoma County

-Labor and Employment Law-
District court erred in dismissing with prejudice retired employees’ complaint alleging that county had breached its obligation to provide them with certain vested healthcare benefits in perpetuity. In light of California Supreme Court’s recent decision recognizing that a county may form a contract with implied terms under specified circumstances, employees should have been allowed to plead facts plausibly showing that county created an implied contract by ordinance or resolution.
     Sonoma County Association of Retired Employees v. Sonoma County - filed February 25, 2013
     Cite as 10-17873

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NAACP, black firefighters argue hostile work environment in lawsuit against Jacksonville

Jacksonville is being sued by the NAACP and a black firefighters group who argue the city’s fire department treats blacks unfairly in hiring, job assignment and transfers and allows a racially hostile work environment. The suit, which expands on discrimination claims brought last year by the U.S. Justice Department, was filed Thursday afternoon in federal court. The Justice suit focused on promotion tests, saying there was a “pattern or practice” that disadvantaged black firefighters. The NAACP and the Jacksonville Brotherhood of Firefighters intervened in that suit in August.
The new court case argues black firefighters have other obstacles working against them. The suit argues disproportionate numbers of black firefighters are disciplined more often and assigned to less-desirable jobs in the rescue or prevention divisions instead of to fire suppression jobs. It argues the hiring process works against blacks, too, saying would-be firefighters have to spend months of time and up to $2,900 studying at a Southside center to be eligible, and the time and cost is a factor in a city where blacks are more prone to live in poverty. City General Counsel Cindy Laquidara said the city hoped to resolve the dispute this year without going to trial.

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Sanchez v. Swissport, Inc

Employee who has exhausted all permissible leave available under the Pregnancy Disability Leave Law may nevertheless state a cause of action under the California Fair Employment and Housing Act. PDLL remedies augment rather than displace those of the FEHA. Allegations that defendant employer terminated plaintiff because she was unable to work during her high-risk pregnancy, refused to grant her a reasonable accommodation in the form of allowing her to remain on leave until she gave birth, and fired her in response to her request for such an accommodation were sufficient to state claims for sex and disability discrimination and retaliation in violation of the FEHA.
     Sanchez v. Swissport, Inc. - filed February 21, 2013, Second District, Div. Four
     Cite as B237761

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Friday, February 22, 2013

Lyons Group to pay $424,000 to 409 underpaid workers at 15 well-known Boston restaurants

News Release

WHD News Release: [02/14/2013]
Contact Name: Ted Fitzgerald or Andre J. Bowser
Phone Number: (617) 565-2075 or x2074
Release Number: 13-0054-BOS

atrick Lyons to alert fellow restaurateurs of need to pay proper wages
BOSTON — A group of 15 Boston-area restaurants and their owners, Patrick Lyons and Edward Sparks, have agreed to pay $424,000 — including $212,000 in back wages and an equal amount in liquidated damages — to 409 employees to resolve alleged violations of the Fair Labor Standards Act identified by the U.S. Department of Labor. Lyons will also issue a public statement warning his fellow restaurant owners of the hazards of using contract labor providers who do not comply with the FLSA.
Investigations by the department's Wage and Hour Division found that employees of the following restaurants were not properly compensated for all work hours: Alibi Bar & Lounge; Back Bay Social Club; Bleacher Bar; The Estate; Game On; Harvard Gardens; Kings Boston; Kings Dedham; La Verdad; The Lansdowne Pub; Lucky's Lounge; Scampo; Sonsie; Sweetwater Café; and Towne Stove & Spirits. Many of these employees were paid straight time wages rather than time and one-half their regular rates of pay for hours worked in excess of 40 in a workweek, as required by the FLSA. The bulk of the underpayments affected Lyons Group kitchen staff, who were paid by Superbrite Professional Cleaning, a separate company, later known as Excel Management.
"Utilizing contract labor providers does not absolve employers from their responsibility of complying with the FLSA and paying workers the wages they are legally due," said George Rioux, district director for the Wage and Hour Division in Boston. "The use of contract labor providers in the restaurant industry has increased over the past several years, along with violations. Employers have a choice. Put these workers on payroll or ensure their labor providers are paying their employees in compliance with the FLSA."
"Employers should be aware that, as a general rule, they will pay twice when they underpay their employees. The  department will seek not only the back wages due the workers, but an equal amount in liquidated damages on their behalf," said Michael Felsen, the department's regional solicitor for New England, whose office negotiated the settlements. "The time has come for the restaurant industry in Massachusetts to address this issue seriously. Underpaying employees not only hurts workers, it undercuts those employers who have chosen to obey the law in the first place." 
As part of enhanced settlement agreements reached with the department, the Lyons Group will audit each restaurant's current compliance with the FLSA and take other steps to prevent violations. This will include developing and implementing a software program designed to detect employees who work in two or more of the restaurants during the same workweek.
The investigations were conducted under the division's multiyear enforcement initiative focused on the restaurant industry in Massachusetts, where widespread noncompliance with the FLSA's minimum wage, overtime and record-keeping provisions has been found.
The restaurant industry employs some of our country's lowest-paid workers who are vulnerable to disparate treatment and labor violations. In addition to the initiative in Massachusetts, the Wage and Hour Division has other ongoing enforcement initiatives throughout the U.S. to identify and remedy violations that are common in the restaurant industry.
The FLSA requires that covered employees be paid at least the federal minimum wage of $7.25 per hour, as well as time and one-half their regular rates for hours worked over 40 per week. The law also requires employers to maintain accurate records of employees' wages, hours and other conditions of employment, and prohibits employers from retaliating against employees who exercise their rights under the law. The FLSA provides that employers who violate the law are, as a general rule, liable to employees for back wages and an equal amount in liquidated damages.

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Wednesday, February 20, 2013

Obama's Minimum Wage Plan Caught Organized Labor By Surprise

Huffington Post

Dave Jamieson

WASHINGTON -- As the White House developed its new proposal to raise the federal minimum wage, there was at least one core constituency of President Obama's that was largely left out of the loop on the plan: organized labor.
Labor unions by tradition are one of the loudest voices advocating for a higher minimum wage, believing it will help spur wage growth not just for the working poor but for all workers. The White House's proposal last week to raise the wage floor from $7.25 to $9 by 2015 and peg it to inflation caught many labor officials by surprise -- in most cases, pleasant surprise, given the president's relative silence on the issue during his first term.
But others have voiced concern off-the-record that the White House's proposal comes with too low a number. Despite the general applause by progressives, labor activists who follow the issue closely recall that on the campaign trail in 2008 Obama stumped for having a minimum wage of $9.50 by the end of 2011.
His proposal now, in effect, is 50 cents and four years behind his earlier proposal, leaving some advocates with a mixture of enthusiasm and worry.
"We're encouraged, but we think the wage is too low," said one D.C. labor official, requesting anonymity to speak freely. "We would have enjoyed a deeper discussion."
A spokesman for the AFL-CIO, the largest labor federation in the country, declined to comment when asked if officials there had talked with the White House about its minimum wage plan ahead of the announcement, though labor sources say AFL-CIO officials did not have the opportunity to give their feedback. Similarly, a spokesperson for the Service Employees International Union (SEIU), many of whose members work in low-wage service jobs, said the union wasn't privy to the minimum wage plan, either.
Both the AFL-CIO and SEIU have publicly praised the White House proposal. AFL-CIO President Richard Trumka said it would alleviate "wage stagnation and growing inequality," and SEIU President Mary Kay Henry said it would "lift up millions of families."
But even among those who are thrilled to see the minimum wage become part of the national dialogue, there are some who believe the White House may be lowballing itself with $9, and at least two of them will be spearheading legislative talks in Congress.
Sen. Tom Harkin (D-Iowa) and Rep. George Miller (D-Calif.) have already said the $9 plan isn't enough, and they'll be advocating for a baseline of $10.10, also to be pegged to inflation. Harkin is the chairman of the Senate Committee on Health, Education, Labor and Pensions, and Miller is senior Democrat on the House Committee on Education and the Workforce. Both legislators have noted that the minimum wage would now be above $10 if it had kept pace with inflation since its historic high in the late 1960's.
The White House is probably hoping its more modest proposal of $9 will be palatable to House Republicans who are ideologically opposed to minimum wage increases, particularly during a weak economic climate. (The White House declined to comment on how it chose its number or whether organized labor was involved in the discussions.) The minimum wage hasn't been raised since 2009, after the last in a series of increases signed into law under President George W. Bush bumped it to $7.25 per hour.
Indexing the minimum wage to inflation is a long-term goal for many low-wage worker advocates, since it would tweak the wage floor each year to keep up with the cost of living, as well as take the politics out of legislative increases made by Congress. Ten states have already taken the initiative to index their minimum wages, usually to the consumer price index. (Nineteen states and the District of Columbia currently have minimum wages that trump the lower federal minimum.)
In his State of the Union address, Obama joked that indexing the minimum wage to inflation was one idea he had in common last year with failed GOP presidential candidate Mitt Romney.
For those who feel the minimum wage has eroded far too much, the downside to indexing is that raising the wage through large lump sums (as Bush did) becomes very difficult politically, given that it's already being raised each year in smaller measures. That makes the dollar value you start at -- in Obama's proposal, $9 -- all the more important, their reasoning goes.
"We wanted to get it above $10 before we index it -- we didn't want it to be artificially low," said one Democratic source, who didn't want to openly criticize the White House plan. The source added, "We were thrilled to see indexing" for inflation in the president's proposal.
A consultant to labor unions was less charitable, saying Obama should have pressed a more ambitious proposal. "Why didn't he go for $10, or even $11?" the consultant asked. "He's negotiating with himself again."
Whatever the number ends up being, Democratic aides expect the increase will be passed, despite claims from Republican leadership that it will hurt businesses and job growth. Minimum wage hikes typically get passed every few years, with Republicans and the business community finding something to like in the larger legislative package. The 2007 measure signed by Bush, for instance, was rolled into a supplemental aid package for the Iraq War that also included a small-business tax cut.
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South Loop Club to Pay $100,000 to Settle EEOC Sex Harassment and Retaliation Case


Federal  Agency Says South Loop Club Allowed Harassment of Female Employees
CHICAGO - South Loop Club, a Chicago bar and grill located  at 701 S. State St., will pay $100,000 under a consent decree entered today to  settle a sexual harassment and retaliation case brought by the U.S. Equal  Employment Opportunity Commission (EEOC), the agency announced today.
The EEOC had alleged that South Loop Club fostered a culture  where sexual harassment and retaliation against female employees went  unchecked.  South Loop Club opted to  settle the case shortly after it was filed and before answering the complaint. 
The EEOC filed suit after first attempting to reach a  pre-litigation settlement through its conciliation process.  The suit was brought under Title VII of the  Civil Rights Act of 1964, which prohibits sex discrimination (including sexual  harassment) as well as retaliation in employment.  The case, EEOC  v. South Loop Club, Civil Action No. 12 cv -7677, was filed on Sept. 26,  2012, in U.S. District Court for the Northern District of Illinois, Eastern  Division.   EEOC Trial Attorneys Brad  Fiorito and June Calhoun, and Supervisory Trial Attorney Gregory Gochanour,  litigated the case on behalf of the government.
U.S. District Court Judge Charles P. Kocoras of the Northern  District of Illinois entered the decree settling the suit, which provides $100,000  in monetary relief to the victims, and requires South Loop Club to report to  the EEOC for the next two years on all employee complaints of sex- or  gender-based harassment and retaliation.   South Loop Club must also train all its employees on the prevention and  eradication of harassment and retaliation and adopt new policies regarding those  forms of misconduct.  The decree also specifically  provides that South Loop Club cannot require recipients of monetary relief to  keep the facts underlying the case confidential, waive their rights to file  charges with a government agency, or refrain from reapplying for work with the  company.
 "This case is a  reminder that federal law protects women working in bars from sexual harassment  as much as women working in high-end business environments," said John Rowe,  the EEOC district director in Chicago.  "It  doesn't matter whether your collar is blue, pink or white -- sexual harassment  is illegal, and the EEOC will combat it."
John Hendrickson, the EEOC's regional attorney in Chicago,  added, "It's encouraging that South Loop Club realized that a negotiated  consent decree was its best option as soon as suit was filed.  That meant we could all focus on what was  going to happen going forward.  Our  expectations on that score are very positive because the decree not only  provides immediate relief for the victims, but also reduces the potential for  future problems by mandating training, reporting, and policy changes in the  workplace."
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Judge rejects sex harassment claim against ex-L.A. Unified chief

February 17, 20137:00 p.m.

A Los Angeles County Superior Court judge has ruled against a midlevel manager who had sued former L.A. schools Supt. Ramon Cortines, alleging sexual harassment.
Judge William F. Fahey ruled that real estate manager Scot Graham failed to file his claim within the six-month time limit allowed in such cases, said Sean Rossall, a spokesman for the L.A. Unified School District. The ruling is dated last Wednesday but was issued late Friday, according to the district.
The judge did not rule on the merits of the allegations.
An attorney representing Graham said he plans to appeal, and Graham said he also may seek redress through the California Department of Fair Employment and Housing, which handles sexual harassment complaints.
The suit stems primarily from Graham's visit to Cortines' Kern County ranch in July 2010. Cortines has said that he and Graham engaged in one episode of consensual "adult behavior," which Cortines characterized as bad judgment on his part.
Graham, 56, alleges that, over the course of two days, Cortines repeatedly tried to engage him in unwanted sexual behavior, and that he felt trapped.
Graham also alleges that later, two supervisors failed to report the issue for several weeks after Graham confided in them. Subsequently, L.A. Unified General Counsel David Holmquist allegedly urged him to drop the matter, according to the suit, which was filed last July.
The district contends that Graham insisted to his supervisors that the alleged incident should not be acted on, and that officials respected his wishes, while also directing him to report any future misconduct.
Cortines, 80, a leading national figure in education, retired in April 2011.
In March 2012, Graham's attorneys notified L.A. Unified that they intended to file a harassment claim. In May, the Board of Education approved a cash settlement of $200,000 plus lifetime health benefits for Graham, who also agreed to leave his $150,000-a-year job as director of leasing and asset management.
The agreement broke down in part because district officials made it public before it was final. Graham ultimately returned to work.
"The facts alone without ever hearing my side of the story should be sickening to the community," Graham wrote in an email. "Superintendent Cortines admitted that he took a married employee to his vacation home and had inappropriate sexual relations."
Meanwhile, parents, students and staff last week voted to change the name of the downtown Cortines School of Visual and Performing Arts.
Cortines' name on the district's visually striking $232-million high school was an issue of contention even before the harassment allegations. The school board overrode its own school naming process to honor Cortines. Board President Monica Garcia, who represents the school, said the action was justified based on Cortines' long service as well as his dedication to the arts and to the arts high school.
But the allegations helped stoke continued unhappiness over the naming.
In balloting organized at the school, about 60% of participants opted for the name Grand School of Visual and Performing Arts, a reference to the Grand Avenue location, said former PTA leader Judi Bell, a member of the renaming committee.
In second place, with 36%, was a name that incorporated "#9," which refers to the project number before the school was named — and the fact that the campus opened on Sept. 9, 2009. The current name attracted just under 4% of the votes. Leaders of the effort now intend to bring the matter to the Board of Education for consideration.
About half the students voted as well as about 200 parents and 33 staff members. Some staff members expressed concern about retaliation if they took part in the process.
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Lawsuit alleges Nashville hotel workers were underpaid, denied overtime

The Tenessean

Bobby Allyn

A group of hotel housekeepers filed a federal lawsuit on Friday alleging that two downtown hotels owned by a notable real estate investor have for years paid them below the minimum wage and illegally denied them overtime pay.

According to the lawsuit, the hotels, the Best Western Music Row on Division and the Comfort Inn Downtown on Demonbreun, paid housekeepers as little as $3.50 an hour and made them work up to 70 hours a week without breaks.

“I am not asking for anything extra. I am only asking for what is fair,” said plaintiff Henry Hernandez, 29, who worked in construction in Los Angeles before moving to Nashville some months ago. The worst part, Hernandez said, is that management “didn’t do anything to stop it.”

Rajesh Aggarwal, 53, of Brentwood, the franchise owner of both hotels, has, over the years, quietly amassed a real estate portfolio of hotels and apartment buildings. Recently his investment group, Global Mall Partnership, purchased a sizable chunk of the long-struggling Hickory Hollow Mall for $1 million.

Asked about the allegations, Mark Nobles, an attorney representing Aggarwal, said “I’m certain that’s untrue,” but then declined to comment further.

Advocates at Workers Dignity, a local labor rights group working with four plaintiffs in the case, say that cheating workers out of pay is prevalent in low-wage industries. Most of the housekeepers the hotels employ are Hispanic single women, according to the group. They were often paid a flat rate of between $650 and $676 every 15 days, and the workers were sometimes given just one day off per week, the lawsuit said. Working 14-hour days was commonplace.

The lawsuit claims several violations of the Federal Labor Standards Act. Immigration advocates say wage abuse against migrant workers cuts across several industries in the Nashville area.

“In the absence of a union in their workplace, many unscrupulous employers abuse workers from other countries who aren’t familiar with what their rights are in this country,” said Stephanie Teatro, advocacy director at Tennessee Immigrant and Refugee Rights Coalition. But Greg Adkins, president of the Tennessee Hospitality Association, said lawsuits brought against hotels are sometimes filed by “disgruntled employees,” adding that just because allegations have been made does not mean there was any wrongdoing.

“The hospitality industry in Nashville is one of the hottest areas in the nation,” Adkins said.”Our hoteliers strive to abide by all state and federal laws.”

In 2011, the U.S. Department of Labor found widespread wage pay abuse among the hotel and motel industry in Tennessee. Federal officials discovered 34 hotels across the state, which together were fined $14,552 in civil penalties and required to pay out more than $170,000 in back wages for labor violations.

The Tennessee Department of Labor estimates that there are nearly 20,000 employed in cleaning and maintenance jobs statewide. Among them, housekeepers in the state, of which there are more than 8,000, are paid around $9.86 an hour on average.

The workers named in the suit, by contrast, were allegedly paid between $3.50 and $7 an hour. Since Tennessee does not have a minimum wage, the state abides by the federal minimum, which is $7.25 an hour.

Though the suit, filed by attorney Karla Campbell, names only four plaintiffs, housekeepers who worked for either of the two hotels in the past three years can join the lawsuit. They are seeking class-action status.

During that period, the hotels rung in around $500,000 in sales, the lawsuit states.Aggarwal, according to the suit, hired Hernandez last summer to work as a house cleaner at the Best Western on Music Row, working 11-hour shifts six days a week.

The suit says Hernandez, like the other workers, was never required to record his workday hours. Instead, he was paid $50 a day regardless of how many hours he worked.Shuffling employees between hotels was common, the lawsuit says. Hernandez quit his job in August and, days later, Aggarwal hired him to work at the Comfort Inn Downtown. He was let go from that hotel in September. Both employers paid him a sub-standard wage, the suit alleges.

“The defendants use fear and intimidation to control their employees,” the lawsuit says, adding that one worker was asked to re-clean a floor six times. That incident “is exemplary of an ongoing custom, pattern or practice of abuse” at the hotels.

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Wednesday, February 13, 2013

Obama renominates NLRB members who were ruled invalid in court

The Hill

By Kevin Bogardus

President Obama on Wednesday asked the Senate to confirm two members of the National Labor Relations Board (NLRB) whose recess appointments were ruled unconstitutional.
Obama sent the Senate a package of nominations that included NLRB Members Sharon Block and Richard Griffin, who were both installed at the agency in a show of power that was ruled invalid by a federal court.
The U.S. Court of Appeals for the D.C. Circuit ruled last month that Block and Griffin’s recess appointments to the NLRB were unconstitutional. Since then, Republicans have sought to challenge decisions made by the labor board during the tenures of Block and Griffin, which began in January 2012.
Forty GOP senators sent a letter Block and Griffin last month urging them to step down. Sens. Lamar Alexander (R-Tenn.), John Cornyn (R-Texas) and Mike Johanns (R-Neb.) have also introduced legislation that would freeze work at the NLRB and the Consumer Financial Protection Bureau (CFPB) due to the controversy over the recess appointments. 
The White House said it disagrees with the court ruling. The administration is expected to appeal the decision.
At the time of the recess appointments, the Senate was holding pro forma sessions to prevent the president from acting. The Obama administration has argued the Senate was actually in recess at the time.
Republicans and business groups protested the move and fought back in court. The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace joined the case last year, arguing the recess appointments were not valid.
Included in the nominations sent to the Senate was Richard Cordray, the head of the CFPB. Cordray was recess appointed at the same time as Block and Griffin.
Critics of the consumer bureau argue the court ruling against the NLRB casts doubt on the legality of Cordray’s position, which is being challenged in a separate lawsuit.
Obama had said last month that he planned to renominate Cordray to the post.
Sen. Tom Harkin (R-Iowa), chairman of the Senate Health, Education, Labor and Pensions (HELP) Committee, said on Wednesday that he was “pleased” with Block and Griffin being re-nominated to the NLRB. Further, he hoped that Obama would nominate two new GOP members and re-nominate NLRB Chairman Mark Pearce as well. Harkin pledged “to give swift consideration” to a full package of five NLRB nominees as chairman of the Senate HELP Committee.
On Wednesday, several House Republican leaders — including Speaker John Boehner (R-Ohio), House Majority Leader Eric Cantor (R-Va.), House Majority Whip Kevin McCarthy (R-Calif.) and Rep. John Kline (R-Minn.), chairman of the House Education and the Workforce Committee — sent a letter to the president asking him to nominate “four qualified individuals” to the NLRB in order to form a quorum at the labor board.
The group of lawmakers, which also included House Republican Conference Chairwoman Cathy McMorris Rodgers (R-Ky.) and Rep. Phil Roe (R-Tenn.), also sent a letter to NLRB Chairman Mark Pearce on Wednesday saying that the labor board should cease all activity until the Supreme Court rules on the appeals court’s decision.
With Block and Griffin’s recess appointments ruled unconstitutional last month, the GOP lawmakers argue that the board doesn’t have a quorum and any decision it now makes will be on shaky legal ground. Pearce has said the labor board would continue to operate despite the court ruling.
The case is getting close attention from Republicans.
On Tuesday, Miguel Estrada, who filed an amicus brief on behalf of Senate Republicans, briefed GOP senators on the lawsuit. Senate Minority Leader Mitch McConnell (R-Ky.) said Estrada believes it’s likely the Supreme Court will review the case, according to a McConnell spokesman.

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Union lawsuit calls Michigan right-to-work law unconstitutional


By Deepa Seetharaman

(Reuters) - Several labor unions filed a lawsuit in federal court on Monday, saying a Michigan law banning compulsory union membership for private sector employees violates the U.S. Constitution.
The right-to-work law, which goes into effect in late March, contains provisions that go "well beyond" the limits of federal law, said Andrew Nickelhoff, an attorney for the Michigan AFL-CIO, one of the unions that filed the lawsuit.
For example, the Michigan law allows for a $500 civil fine and the possibility of criminal liability for violators, which is not done under the National Labor Relations Act, he said.
"Our position is that so many parts of the right-to-work law are unconstitutional, that the court should strike down the law in its entirety," Nickelhoff said in an interview.
The lawsuit is one of three that have been filed challenging Michigan's right-to-work laws, which prompted protests of more than 12,000 unionized workers and supporters at the state Capitol in Lansing after it was enacted on December 11.
The AFL-CIO represents about 50 labor unions, according to the complaint filed in U.S. District Court in Detroit.
The Michigan Building Trades Council, the International Brotherhood of Teamsters and the Service Employees International Union are among the other groups involved in the case.
The defendants are the Michigan Employment Relations Commission, Michigan Department of Licensing and Regulatory Affairs Director Steve Arwood, Michigan Attorney General Bill Schuette and Wayne County Prosecutor Kym Worthy.
"The law is constitutional and we will defend it aggressively in court," said Joy Yearout, spokeswoman for the Michigan Attorney General Schuette.
Maria Miller, spokeswoman for Wayne County Prosecutor Worthy, said the prosecutor's office had not yet seen the filing and declined to comment.
Michigan, once a union powerhouse, became the country's 24th right-to-work state after Republican Governor Rick Snyder approved a pair of "right-to-work" bills covering public- and private-sector unions in December.
Monday's lawsuit does not cover the law affecting public-sector workers.
(Editing by G Crosse)
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Lawsuit claims Chickie's and Pete's skimmed staffers tips

Jason Nark

EVERY NIGHT after work, Andrew Laplante claims, he got pinched by his bosses at Chickie's and Pete's and it really hurt . . . his wallet.
Laplante worked as a bartender for nearly three years at Chickie's and Pete's in the airport and claims in a federal lawsuit he filed last week that he and other employees were forced to pay the bar 2 percent of their total credit-card receipts, in cash, after closing.
This was known as the "Pete Tax" among some employees, the lawsuit alleges, and Laplante's attorneys say the practice violates federal, state, and city wage laws. A spokesman for the restaurant, Kevin Feeley, confirmed that the department is investigating Chickie's and Pete's, but he declined to elaborate.
Pete Ciarrocchi, owner of Chickie's and Pete's issued a statement saying he believes "our policies are fair."
"Anybody who knows me knows that at Chickie's and Pete's, we've always tried to do the right thing by our employees. We treat people fairly and with respect," Ciarrocchi said.
Feeley said he believes that the lawsuit and the Department of Labor investigation deal with the same issue.
"We are keenly aware of that, and the company is fully cooperating," Feeley said of the investigation.
According to the lawsuit, the "Pete Tax" would often reach $60 to $75, sometimes resulting in a 10 percent loss of the employee's wages during the shift. Managers would collect the cash after the shift, the lawsuit alleges, and someone from a corporate office would pick up the money once a week. The "tax" was not optional or voluntary, the lawsuit contends.
Laplante's attorney, Lou Pechman, said the alleged "tip-out scheme" violated minimum-wage law. Philadelphia's gratuity-protection bill, according to the lawsuit, offered employees even more protection, forbidding employers from skimming employees' credit-card gratuities to pay processing fees.
"The restaurant industry has a history of cheating workers out of pay they are entitled to under the law," said Pechman, who runs the website "Waiters live off of their tips, and there are strict prohibitions in the law against owners skimming tips from the waitstaff."
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Tuesday, February 12, 2013

Harvard Club reaches a $4 million settlement with waitstaff over tips not paid

The Harvard Club has reached a tentative $4 million settlement with its waitstaff over a dispute about tipping, according to a letter the exclusive alumni club sent its members earlier this week.
Employees filed a class action lawsuit in November, claiming they had been cheated out of potentially hundreds of thousands of dollars in tips because of a misleading 17 percent surcharge on food and beverage bills that the club stated was collected “in lieu of a gratuity.” Some club members thought they were effectively paying tips, but the workers didn’t get any of the surcharge money.
The club, which has a no-tipping policy, plans to pay for the settlement in part with the proceeds of a projected sale of one of its buildings at the main clubhouse on Commonwealth Avenue.
It was not immediately clear how many current and former waitstaff would receive compensation from the settlement.
The case has been amicably resolved,” said Shannon Liss-Riordan, a lawyer representing the workers. She would not comment further on the settlement.

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KPMG fails to get judge to dismiss gender discrimination class action

Daily Report

By Victor Li

The gender discrimination class action that Sanford Wittels & Heisler is pursuing on behalf of five former female employees of KPMG is the latest in a string of sexual bias cases that the firm has brought against some of the biggest companies in the world.
On Thursday, a U.S. district court judge in Manhattan denied a motion by KPMG's lawyers at Ogletree, Deakins, Nash, Smoak & Stewart to dismiss the claims, or in the alternative, to force each of the five plaintiffs to pursue her claims individually.
In a 38-page decision, U.S district judge Jesse Furman ruled that KPMG's motion to dismiss was premature in light of the fact that no discovery has yet taken place in the case. The plaintiffs claim that despite receiving strong evaluations and consistent promotions early in their KPMG careers, they were later denied raises and promotions while being subjected to sexual harassment from coworkers and superiors. Four of the plaintiffs allege that they were treated differently after returning from paid maternity leave, while the fifth claims that she had her pay frozen because she missed many office events. All five were either terminated by or resigned from KPMG.
KPMG argued that the case should be tossed in part because of the U.S. Supreme Court's 2011 decision in Wal-Mart v. Dukes, which blew up a gender discrimination class action against the retailer due to lack of commonality of claims by the female Wal-Mart employees suing the company. KPMG's attorneys argued in their motion to dismiss that Dukes applied because KPMG, like Wal-Mart, lacked uniform, companywide employment practices, and because the alleged transgressions were made by individual managers and supervisors operating under their own discretion.
"Dukes signaled the 'death knell' for claims such as those made in plaintiffs' [complaint]," KPMG's attorneys wrote. The company also argued that because it no longer employed the plaintiffs, they lacked standing to seek an injunction barring KPMG from discriminating against them in the future.
Furman, however, disagreed with KPMG's arguments. He held that it was plausible that the plaintiffs might be able to demonstrate commonality at the class certification stage.
"Although the [complaint] includes generalized and conclusory allegations of 'flaws' and 'discretion' that would not suffice by themselves, plaintiffs allege that several specific headquarters-level policies resulted in discrimination," Furman wrote, citing KPMG's companywide flexible schedule policies, as well as the automatic demotion of women but not men who transfer from an international office to the U.S. Furman also held that because two of the plaintiffs were trying to get their jobs back, they had standing to seek injunctive relief.
The win was the latest in a string of impressive results for Sanford Wittels in gender discrimination claims. The firm won a stunning $254 million verdict against Novartis in May 2010, when the company was found liable for its pay, promotion and pregnancy policies. The firm also won class certification for a gender discrimination wage-and-hour suit against Publicis Groupe in July 2012, and filed similar sex-bias suits against Proskauer Rose in October 2011 and Bayer in May 2011.
Lead plaintiffs attorney Katherine Kimpel of Sanford Wittels told the Litigation Daily that she was pleased with the decision. "Dukes was very much a case driven by facts and evidence. In Dukes, there had been discovery and class certification. Here, we just have a complaint," said Kimpel. "[Furman] was clear that Dukes can't be applied willy-nilly to everything else."
Ogletree partner Cheryl Stanton, who represented KPMG, referred comments to her client.
Company spokesperson Manuel Goncalves told us in an email: "KPMG is recognized as a leader for its strong commitment to supporting women in the workplace. Diversity and inclusion have long been priorities for the firm, and they are woven into our culture and everything we do. We continue to believe this lawsuit is entirely without merit, and we intend to vigorously defend ourselves."
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Alcon Laboratories pays nearly $200,000 in overtime back wages to Houston workers following US Labor Department investigation

Press Releases
U.S. Department of Labor
Wage and Hour Division
Release Number: 12-2376-DAL

HOUSTON -- Alcon Laboratories Inc., a pharmaceutical manufacturer of eye care products, has agreed to pay $199,443 in back wages to 342 assemblers, material handlers and production technicians following an investigation by the U.S. Department of Labor’s Wage and Hour Division. The investigation found systemic violations of the Fair Labor Standards Act’s overtime and record-keeping provisions at the company’s Houston manufacturing facility.
“This company did not pay employees for time spent in putting on work clothing and protective gear,” said Cynthia Watson, regional administrator for the Wage and Hour Division in the Southwest. “Workers are entitled to receive the wages they have rightfully earned.”
The division’s Houston and Dallas District Offices determined that the company failed to pay workers for time spent donning, doffing and sanitizing protective personal equipment. Employees are required to wear work clothing and protective gear before clocking in to begin work, but they were not paid for the time spent doing so or for cleaning up at the end of the workday. As a result, the required overtime wages were not paid.
Record-keeping violations occurred because the employer failed to record all hours worked by employees, such as employee time to put on and take off protective gear.
Fort Worth, Texas-based Alcon, has agreed to future compliance with the FLSA. Back wages have been paid in full. According to the company, it plans on maintaining future compliance by taking proactive steps, such as moving the time-clock system next to employee lockers and requiring employees to clock-in before they don personal protective equipment and clock-out after they have doffed personal protective equipment.
The FLSA requires that covered employees be paid at least the federal minimum wage of $7.25 for all hours worked, plus time and one-half their regular rates, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week. Additionally, employers must maintain accurate time and payroll records.

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Harris v. City of Santa Monica

-Labor and Employment Law-
Under the Fair Employment and Housing Act, when a jury finds that unlawful discrimination was a substantial factor motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, backpay, or an order of reinstatement. In light of FEHA’s express purpose of not only redressing but also preventing and deterring unlawful discrimination in the workplace, a plaintiff who is found not entitled to monetary relief in a "mixed motive" case may still be awarded, where appropriate, declaratory relief or injunctive relief to stop discriminatory practices and may be eligible for reasonable attorney’s fees and costs.
     Harris v. City of Santa Monica - filed February 7, 2013
     Cite as S181004

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US Department of Labor files whistle-blower lawsuit against Helena, Mont.-based Kbec Inc.

United States Department of Labor

HELENA, Mont. – The U.S. Department of Labor has filed a lawsuit in the U.S. District Court for the District of Montana alleging that Helena-based Kbec Inc., a Dairy Queen franchisee, illegally terminated an employee for making complaints regarding workplace violence at the company's facility. "Employees should be free to exercise their rights under the law without fear of termination or retaliation by their employers," said Gregory Baxter, regional administrator of the department's Occupational Safety and Health Administration in Denver. "This lawsuit underscores the department's commitment to vigorously take action to protect workers' rights."
OSHA opened an investigation after the worker filed a whistle-blower complaint alleging retaliation by the company in violation of Section 11(c) of the Occupational Safety and Health Act, which prohibits discharge or other retaliation against workers for filing a safety or health complaint, or for exercising other rights afforded to them by the act. The investigation revealed that the employee was fired shortly after raising concerns about workplace violence. The department is seeking reinstatement of the employee, payment of lost wages and benefits and enjoining the company from future retaliation against its employees. Kbec Inc. operates two Dairy Queen franchises in Helena. OSHA enforces the whistle-blower provision in Section 11(c) of the act and 21 additional statutes protecting employees who report violations of various securities laws, trucking, airline, nuclear, pipeline, environmental, rail, workplace safety and health regulations, and consumer product and food safety laws. Under the various whistle-blower provisions that Congress has enacted, employers are prohibited from retaliating against employees who raise concerns or provide protected information to the employer or to the government. Employees who believe that an employer has retaliated against them for engaging in protected conduct may file a complaint with the secretary of labor. 

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Settlements approved in Pittsburgh hospital cases

February 07, 2013
Office of Public Affairs

The NLRB Office of General Counsel today approved settlement agreements between two UPMC hospitals and the Service Employees International Union that resolves most charges filed by the union. The SEIU had been in the early stages of an organizing campaign when the incidents occurred, although the union has not yet filed a petition for an election. In the settlement agreements, UPMC Presbyterian Shadyside agreed to offer reinstatement and backpay to two employees who were discharged after supporting the union, and to reimburse two other employees who lost wages due to a suspension and other actions.  The employer also agreed to rescind overly-broad policies related to social media, solicitation rules and a code of conduct at all UPMC facilities, to post Notices to Employees in multiple break rooms in four Pittsburgh hospitals, and to train supervisors to avoid future unlawful behavior. One remaining charge related to the use of company e-mail by employees to communicate about the union was not resolved and will proceed to trial before an Administrative Law Judge. The trial date is tentatively set for February 20.

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Ex-Gilbert teacher alleges race bias in lawsuit

Luci Scott

A former teacher in Gilbert Public Schools, a Black woman from Cameroon, has sued the district, alleging racial discrimination that she said resulted in economic and emotional harm.
Gladis Mopecha, who worked for the district as an English-language learner specialist from 2005 to 2010, is also suing Superintendent David Allison; Nikki Blanchard, the superintendent of human resources at the time Mopecha was employed; Vicki Hester, principal at Meridian Elementary School; Cheryl Lira-Layne, the district’s English-language learner coordinator; Dennise Redford, the English-language learner coach for the district; and Deborah Singleton, principal at Spectrum Elementary School.
“Once Gladis was targeted for racial discrimination, it was relentless,” her lawsuit says.
An attorney representing the district, Georgia Staton, said the district does not comment on litigated matters. “We obviously believe the plaintiff’s claim has no merit,” she said.
From 2005 to 2007, Mopecha’s evaluations were satisfactory, but, the suit says, attitudes changed in 2008 when the political climate in Arizona heated up over immigration. That year, Mopecha received reviews that were critical.
Spectrum Elementary’s Singleton told Gladis to eliminate her accent, according to the suit so Mopecha paid more than $1,000 for lessons, which did not prove effective.
The next year, Singleton’s ratings of Mopecha improved and showed no rating of “below standards,” as they had in 2008. Still, Singleton admonished Mopecha about her accent and communication skills, the suit says.
During the 2008-09 school year, Mopecha was assigned the additional duty of helping students out of their parents’ cars at the drop-off point at Spectrum. A parent complained that Mopecha had grabbed a child by the arm and told her to hurry up, an allegation that was disputed.
Mopecha told Blanchard and Singleton that other parents now refused to allow her to help their children out of their cars, locking the car doors when Mopecha approached.
“Gladis was treated differently than her teacher colleagues, by parents and by administrators because of her race and nation of origin,” the lawsuit says.
During summer school for English-language learners in 2009, Mopecha encountered teachers who claimed they had trouble communicating with her. “It was clear to Gladis that those teachers did not want to work with an African woman,” her suit says. She was terminated from the summer-school program.
In the 2009-10 school year, Mopecha was assigned to three elementary schools: Spectrum, Meridian and Greenfield.
“An atmosphere of public resentment against immigrants inundated all ELL teachers in August 2009,” according to the suit.
Hester, principal at Meridian, “made a special effort to discredit Gladis as a teacher, although (Mopecha’s) workload of 36 students was higher than the entire workload the previous year,” the suit says. Mopecha also had six students at Greenfield and 16 at Spectrum in 2009-10.
Mopecha learned from a colleague about a meeting early in the school year chaired by Hester that “devolved into personal attacks on Gladis, with Hester prompting teachers for more details,” the suit says.
On Nov.10, Singleton wrote a critical evaluation of Mopecha.
Mopecha believes the district intended to fire a teacher with an accent while gaining a scapegoat for any failings that a then-ongoing state audit of the English-language learner program might reveal, the suit says.
“The working environment at Meridian became increasingly hostile as the year progressed,” the suit says.
“A teacher colleague told Gladis that she was not allowed to work with kindergarten students any more, apparently based on a parent complaint that they didn’t want a Black woman touching their child,” it says. “One of the kindergarten teachers told Gladis that many parents discriminated against her because of her heritage and the color of her skin, to the point of several parents pulling their children out of this teacher’s class.”
Mopecha resigned in December 2009, effective May 2010.
In March 2010, the district learned it had passed the state English-language learner audit, and Singleton praised Mopecha’s hard work and contribution to a successful audit, according to the suit.
By that time, her lawsuit says, Mopecha had lost 40pounds from the stress, her health was impaired and her self-esteem was ravaged.
Mopecha applied for jobs in Gilbert Public Schools and a dozen other districts with no success.
She was unavailable for comment for this story but is reportedly working at an unidentified charter school.
She applied for unemployment benefits about October 2010, marking “harassment/hostile work environment” on the form, and the district opposed her application. She was denied benefits and appealed.
At a hearing at the Department of Economic Security, the administrative law judge found that the district had violated the Civil Rights Act of 1964 by engaging in “unlawful employment practices.” The judge also found that the district discriminated against Mopecha “and (was) harassing her on the basis of ... national origin,” the suit says.
The judge also found that Mopecha’s daughter was being bullied and the that district was not addressing the situation. The judge found that overall, the working environment was “negative, hostile and unbearable.”
In her lawsuit, Mopecha asks for compensatory and punitive damages and attorney’s fees.

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Beth Israel, doc settle gender discrimination suit for $7M


By Ira Kantor

A doctor at Harvard Medical School has settled a gender discrimination lawsuit with Beth Israel Deaconess Medical Center for $7 million.
The case involved allegations of gender discrimination and retaliation brought by Dr. Carol Warfield, who served as chief of the hospital’s anesthesia and critical care department from 2000 to 2007.
As part of the settlement, Warfield will also have the hospital’s pain clinic named in her honor.
“I came to the Beth Israel Hospital as a resident in the 1970s and made it my professional home. It was my judgment at the start of my career, as it is today, that BIDMC is a vibrant and important health-care institution, with caring, innovative and talented clinicians and deeply committed staff,” Warfield said in a statement. “I am glad that this dispute is behind me and behind the institution I love. I am also humbled by BIDMC’s acknowledgement of my contributions and deeply gratified that the hospital has chosen to lead at this moment by reaffirming its commitment to equal opportunity for all of its employees. I am content with the resolution here and look forward to my association with BIDMC now and into the future.”
The hospital said it had contested Warfield’s claims throughout the litigation, which was scheduled for trial this week, and in reaching a settlement, would not admit any wrongdoing.
Warfield serves as the Lowenstein Distinguished Professor of Anesthesia at Harvard Medical School.
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Wednesday, February 6, 2013

Battle over Cequent jobs heading to arbitration

Local News Leader

GOSHEN – There’s new information on the battle to keep Cequent Towing in Goshen.
The company wants to close the plant and move its jobs to Mexico.
The United Steelworkers Union took the company to court, saying members felt they were entitled to arbitration.
A federal judge recently agreed. The union says an arbitrator has been picked, but there is still no date for negotiations to begin.
Workers hope it will be before February 21 when Cequent plans to begin the layoffs.
The union is also waiting for a ruling on its motion to stop the company from moving equipment out of the plant until arbitration is complete.

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