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Volume 6, Issue 10
October 2017
EEOC Says Blue Cross Did Not Assist Deaf Online Job Applicant 
According to the EEOC, Blue Cross Blue Shield of Texas refused to hire Sheryl Meador, a deaf woman, after failing to accommodate her disability during the audio portion of its application process. After an initial review of her resume, Meador was sent instructions to complete an online application. Meador was unable to complete the audio portion of the 35-minute online assessment because there were no captions or other guides for applicants with hearing difficulties according to the complaint. The interview coordinator allegedly stopped communicating with Meador after an exchange of emails. The lawsuit also claims that Meador followed up with the company a few months later seeking an accommodation for her disability for the application process but never received a reply. Disability Rights Texas, a federally designated legal protection and advocacy group, represented Meador during the investigation of her bias charge and will likely be joining the EEOC's prosecution of Blue Cross Blue Shield of Texas. 
Aide to California Politician Settles Wrongful Termination Suit
Christine Richters, aide to County Supervisor Todd Spitzer, has agreed to a $150,000 settlement to drop her wrongful termination lawsuit. Richters' lawsuit alleged an "extremely stressful" work environment and "unrealistic demands" by Spitzer. She claimed disability discrimination, harassment, and retaliation. According to Richters' lawyers, despite not being under Spitzer's direct supervision, he created a toxic work environment that was based on fear and aggression. The lawsuit claimed that Spitzer's temper caused Richters to suffer several health issues, including hair and weight loss and depression. When she asked for a transfer, she was allegedly told "no one leaves Spitzer unless they're fired." Along with her claims of harassment, discrimination and retaliation, the county had allegedly failed to pay Richters overtime and minimum wages during the time she worked as an executive aide to Spitzer. She said she was required to be completely available at all hours of the day and sometimes worked 24-hour shifts without compensation for each hour of work. Spitzer issued a statement, after Richters filed her lawsuit, that the allegations were "false and misleading." Despite the differing accounts, a settlement was reached on September 5, 2017 in which Richters will drop all claims against the defendants in return for the county paying $150,000 by October 17, 2017. 
Ninth Circuit Denies Deference to DOL's Interpretative Guidance on FLSA Tip Credit Regulation
In a recent consolidated case brought by a group of former servers and bartenders against several restaurants, plaintiffs argued that they worked "dual jobs," but were not paid full minimum wage when performing non-tipped job duties. According to the FLSA, employers must pay non-exempt employees at least the federal minimum hourly wage, $7.25 per hour. However, if the employee is a "tipped" employee, employers can pay as little $2.13 per hour if the employee regularly earns more than $30 a month in tips. If they do not make $30 in tips, with the employer making up the difference between the tipped employee's lower hourly rate and the federal minimum wage via a "tip credit." The Department of Labor has issued interpretative regulations for the "tip credit" in which it explains that employees who perform more than one job for a single employer, and where one or more of the jobs does not regularly result in tips, are considered "dual employees." FLSA regulations prohibit employers from using tip credits to reduce a "dual employee's" hourly rate below the statutory minimum wage when they perform non-tipped jobs. In the recent Ninth Circuit case, the employed servers and bartenders argued that they were dual employees and were not paid appropriate minimum wage when they performed non-tipped duties such as cleaning bathrooms or drink dispensers. The employees relied upon the DOL's Field Operation Handbook, which states that employees who spend more than 20% of their time performing duties not designed to originate tips are performing in a dual job capacity. Thus, they should be paid minimum wage for performance of the non-tipped duties. The Ninth Circuit found the interpretation to be inconsistent with federal regulations and refused to defer to the Field Operation Handbook. The plaintiffs were not completing two separate jobs and to expect employers to parse out which jobs were "tipped" and which were "non-tipped" was impractical in this situation according to the Ninth Circuit. 
EEOC Challenges Hiring Process Used by Dollar General in Alabama
The EEOC has taken the position that a two-step hiring process used by Dolgencorp LLC at its Bessemer, Alabama facility is a violation of the rights of workers with actual or perceived disabilities and illegally probes private family medical history. The class of workers, including Vincent Jackson, the charging party, had all passed the facility's first step in the hiring process. By successfully interviewing for general warehouse worker positions and receiving job offers, they were then moved to the second step of the process which required candidates to pass "extensive, and often, highly invasive " medical exams in order to be officially hired, according to the EEOC. The lawsuit claims the standards set forth in the medical exams were not relevant or essential to the general warehouse position the candidates had applied for. Examples of the requirements listed in the case included 20/50 vision in both eyes and blood pressure under 160/100, which the EEOC asserts unlawfully disqualified applicants like Jackson on the basis of a disability. When Jackson revealed he was unable to see out of his right eye in his medical exam, Dollar General allegedly stopped considering his application, leading the EEOC to allege that the company violated the Americans with Disabilities Act. In addition to the ADA allegations, the EEOC also included a class claim against Dollar General under the Genetic Information Nondisclosure Act (GINA), which prohibits employers from making hiring, firing, job placement or promotion decisions based on an employee's family medical history or other genetic information. The facility in Bessemer allegedly sought protected genetic information from Jackson and other applicants by compelling them to detail medical histories as part of the allegedly unlawful post-offer medical exams. According to the complaint, the ADA violations have been going on since at least December 2013 and the GINA violations since at least 2011. 
Bakery in Arkansas Violates Federal Labor Laws in Third Attempt to Decertify Employee's Union
Southern Bakery in Hope, Arkansas has been found in violation of federal labor laws by the U.S. Court of Appeals for the Eighth Circuit. According to the lawsuit, a majority of employees voted to retain the Bakery, Confectionery, Tobacco and Grain Millers Local 111 union in 2009 after a co-worker filed a petition to decertify the union. In 2011, the NLRB determined that a second attempt to decertify the union was invalid due to Southern's "unlawful assistance" in the decertification efforts. The third attempt to decertify  the union resulted in an anti-union campaign launched by Southern Bakery which threatened worker's jobs and further threatened business closure if employees did not vote to decertify. According the Eighth Circuit's opinion, the bakery installed cameras to conduct surveillance on employees' union activities and urged them to report co-workers engaging in union activities. The company also banned union representatives from the premises despite the collective bargaining agreement that allowed such visits. The court disagreed with the bakery's claim that the NLRB's determination was not supported by substantial evidence. The court ordered Southern to recognize the union and continue collective bargaining discussions with the union. 
How Do You Report Non-Binary Employees to the EEOC?
Workforce data is reported to the federal government annually by an estimated 67,000 employers. The current forms have two options for gender: male and female. This has recently become a dilemma for some employers who have employees that are non-binary, or those who do not identify as either male or female. Some state and local governments like Oregon and the District of Columbia are taking steps to recognize these employees. They became the first two jurisdictions to offer a non-binary option on driver's licenses. People can choose either "X," "M," or "F." New York and California also have legislation pending that would offer non-binary classifications on state identity documents. It is unclear how many non-binary employees there are in the U.S. workforce according to a spokesman for the National Center for Transgender Equality, but employers should keep an eye on developments in the area of surveying workers on their gender for data reports to the government. The current EEO-1 Report does not offer a non-binary option. The EEO-1 Report is required by the EEOC for certain employers and must be filed every year. It is unlikely any guidance on reporting non-binary employees will be forthcoming from the current administration, but employers should pay attention to changes in their state and local governments to avoid reporting issues down the road. Until the EEOC offers a non-binary option, employers should continue to give workers the opportunity to self-identify their gender, and if an employee declines to self-identify as either male or female, the company is currently allowed to conduct a visual observation of an employee to report gender, race or other categories required on the EEO-1. 

Breazeale, Sachse & Wilson, L.L.P. Labor & Employment Attorneys