Category: Employment Discrimination

Wrongful Termination

Big Payout for Wrongful Termination of HR Director

A huge settlement was recently awarded to Cynthia Begazo for her wrongful termination case. Begazo initiated the case in September of 2015 after she was fired from Passages Malibu Rehab Center. She alleged that the termination was wrongful on the basis of discrimination and retaliation.

Begazo started working for Passages Malibu in March 2015 as their Human Resources Director. She was 53 at the time, and disclosed to her employers that she had been suffering from Leukemia. That same month, she first approached Passages co-founder Pax Prentiss about some concerns she had. She had noticed that some of the staff members such as maintenance, housekeepers, and kitchen workers were not receiving their lunches and breaks. Being in charge of HR, it would have been partially her responsibility to make sure the company was in compliance with state laws regarding lunches, breaks, and the like. Prentiss’ reply however, was disheartening. He allegedly told her, “Don’t worry about it. You have bigger things to worry about.” Around this time, Begazo also mentioned the facility’s compliance issues with training, licensure and contracts, but states that nothing was done to correct the issues.

The following month, the (soon to be) COO Marina Mahoney and Prentiss asked Begazo to terminate three employees – all of whom had medical issues. Begazo protested, telling Mahoney and Prentiss that terminating employees because of medical conditions was illegal. Mahoney replied that, “she would fire anyone that was too slow, could not keep up, [and] who did not fit in with the ‘new Passages’.” This was not the only occasion where Mahoney seemingly targeted employees with medical issues. Begazo alleges that throughout her employment, there were several times where Mahoney told her she did not like it when employees took time off for medical reasons. After it was all said and done, the three employees Mahoney singled out were in fact let go. C.J. Robinson was the first of these three to be terminated in April of 2015. When Begazo asked why she had been fired, Mahoney told her it was because Robinson was “too slow”, “smelled foul”, and “can’t keep up because she [was] too old”. Later that month, Debra Saunderson and Mark Bonelli were terminated, both of whom were over the age of 50. Begazo asked for the reasoning behind these terminations as well. Mahoney’s reasoning for letting Bonelli go was because, “he’s old” and she didn’t think “he’s ever going to keep up.” Again, Begazo warned Mahoney about the legality of terminating employees due to the age. Mahoney replied that she could “do whatever she wanted” because of the at-will presumption.

Not too long after, Kathryn Rivas (Passages Program Director) informed Begazo that she would need to take leave in order to recover from a medical condition. Begazo took this information to Mahoney who replied, “You know what, she’ll never work here. She’ll never work for me.” Despite Begazo’s concern over firing an employee with a medical condition, both Mahoney and Prentiss continued to press her, asking if there was “any way to fire” the employee. While the employee was on leave, Pretniss and Mahoney allegedly harassed Rivas. Begazo warned Prentiss that he should not contact an employee at all while they are on leave, “let alone harass them”. However, Prentiss ignored her recommendations.

In a shocking turn of events, a patient was found dead in his room on April 23rd, 2015. Upon inspection of the scene, Mahoney found that there was a plastic bag and a trash can covering the patient’s head, scratch marks on his face, and blood on the bed of the patient’s roommate. These details led Mahoney to note that although they initially thought the death was a suicide, it could have been a homicide. Begazo asked if all of this information had been given to the appropriate entities (detectives, Department of Health, the Joint Commission, and liability carrier). Mahoney replied, “I don’t want to say anything until there’s a medical report….I don’t want you reporting any of it.” After this, she promptly walked out of the room. Begazo reviewed employee files and discovered that the nurse on duty the night of the death had not received proper training. Mahoney admitted that the facility did not have “any formal or written procedures for intake, detoxing, and monitoring” the patients. Mahoney then ordered Begazo to alter the employee files and falsify information about the events surrounding the patient’s death, which Begazo refused to do. After this, Begazo states that Mahoney stopped talking to her, leaving her excluded from projects and employee meetings.

Around April 30th 2015, Begazo contracted an infection due to her Leukemia. Despite having a fever of 102 degrees, she went to work anyway due to fear of losing her job. Begazo’s doctor then put her off of work for one week in order to give her time to recuperate. Begazo informed the HR department and Mahoney on May 1st 2015 that she needed to take at least a three day absence from work due to the medical problems. She states that upon receiving this news, Mahoney was “visibly upset”.

Similar to what happened to the other employee that went on medical leave, Begazo states that while she was out she was contacted several times by Mahoney regarding work matters. She also required her to reply to all work related emails and telephone calls from staff members.

On May 3rd, Pretntiss and Mahoney met with the HR staff, and informed them that they would be terminating Begazo due to her medical leave of absence. At this time, Prentiss also offered Begazo’s job to HR generalist in Begazo’s department.

On May 6th 2015, Begazo returned to work only to be told that she was being terminated. Interestingly enough, Prentiss commented “You’re no longer a fit, but your skills and experience are excellent.”

Due to the overwhelming evidence of disability discrimination and retaliation (amongst other claims) on the part of Passages Malibu, the court found in favor of Begazo on March 3rd, 2017. The award amount totaled $1.8 million dollars.

 

Sources:

http://patch.com/california/malibu/former-passages-malibu-employee-alleges-improriety-lawsuit-0

http://www.dailynews.com/general-news/20150921/passages-malibu-rehab-center-sued-by-ex-hr-director-with-laundry-list-of-allegations

https://dlbjbjzgnk95t.cloudfront.net/0898000/898594/operativecomplaint.pdf

 

Sexual Harassment

Sexual Harassment in Corporate America – Not Just TV Drama

The 1960s probably come to mind when you think of men making aggressive (perhaps appalling) advances towards female co-workers. But the reality is, that “Mad Men” stereotype is not too far from the corporate world today. Even the 2016 election cycle seemed to bring some of this issue to light – i.e. grab them by the what? The Roger Ailes controversy was one of the most widely publicized and closely followed news stories of the year. Over two dozen women came forward to speak out against Ailes’ inappropriate behavior, leading the big wig to resign from Fox News after a 20 year career. The world was shocked when women spoke of sexual harassment and assault from beloved comedian Bill Cosby.

But for many women, they don’t have to watch the news to see harassment culture in action. A report released in June 2016 by the EEOC Select Task Force on the Study of Sexual Harassment in the Workplace revealed some alarming findings. Key findings included:

  • Workplace harassment remains a persistent problem
  • Workplace harassment often goes unreported (3 out of 4 victims never report the harassment)
  • There is a compelling business case for stopping and preventing harassment
  • It starts at the top
  • It’s on us (everyone)

The EEOC also notes that 45% of all complaints filed are based on sex. This is far more than any other type of harassment reported. They have also noted that 83% of all sexual harassment charges were filed by women.

Joann Lublin details the trials and tribulations of female executives in her book, Earning It: Hard Won Lessons from Trailblazing Women at the Top of the Business World. She is also the management-news editor at the Wall Street Journal. Lublin interviewed several successful women for the book and shares their personal stories of sexual harassment and degradation. Many of the anecdotes take place in the 1980s and 1990s, but not all. The broad span of years in which the incidents take place is rather disheartening. Unfortunately, it’s evident from many sources that sexual harassment still prevails today as well.

Most recently, a lawsuit was filed against insurance company AIG by their former employee Marlee Valenti. The plaintiff began working for AIG in 2009, and was promoted within a year to Senior Underwriter. She won multiple awards for her performance. The issues began in 2012 when she was transferred to the Public Management Liability Commercial Lines Division. The division was well known within the company as the “Boy’s Club”, as only an estimated 10% of its employees were female. Valenti states that in the division, she and other female employees endured incredulous acts of sexual harassment, including male executives hiding under women’s desks in order to look up their skirts. Valenti also stated that she had been groped and licked by male co-workers, among other things. Though the behavior was grotesque, the plaintiff didn’t feel there was anyone she could make a complaint to. Her direct supervisor Michael Donnelly was, in her words, “a willing participant” in the problematic behavior. Eventually, Valenti states that Donnelly began showing “clear disdain” towards her. This escalated in September of 2013 when she received a formal written performance warning. Along with the write-up, Valenti’s biggest account was taken away from her and she claims that she was denied opportunities, as all of her supervisors began ignoring her. In December 2013, the problems came to a head when Valenti discovered her co-workers had been “speaking negatively” about her to others in the industry. She had enough. This prompted Valenti to submit a 150 page rebuttal to management, complete with “evidence” of the harassment she had endured. The following month, Valenti was fired. The company allegedly completed “a perfunctory investigation” but found no wrongdoing.

It is only a small percentage of stories such as these that gain notoriety. The only way that workplace harassment will be eradicated is if each of us take action. That can be in the form of making complaints on your own behalf, or standing up for co-workers. When necessary, it can also take the form of a lawsuit. If you feel that you have been sexually harassed in the workplace, call our office for a free consultation. Together, we can help end this epidemic, one case at a time.

 

Sources:

http://nypost.com/2017/01/24/ex-aig-worker-sues-over-never-ending-stream-of-harassment/

http://www.nydailynews.com/new-york/aig-worker-sues-sexual-harassment-article-1.2953841

http://dealbreaker.com/2017/01/aig-sexual-harassment-lawsuit/

https://www.theatlantic.com/business/archive/2016/10/when-women-have-power-they-can-do-something-about-sexual-harassment/505316/

https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm#_Toc453686298

 

sex discrimination

Research giant LexisNexis to pay gender discrimination settlement

LexisNexis is one of the world’s top research content providers to the legal, business, law enforcement, government, and corporate industries. Their sister company, LexisNexis Risk Solutions has agreed to pay more than $1.2 million to female employees in management due to the U.S. Labor Department’s allegations that they were subject to gender discrimination. This includes 185 affected female employees in the Alpharetta office as well as 26 female employees at the Boca Raton location. The company has also agreed to pay an additional $45,000 in salary adjustments to women at the Boca Raton operation.

The settlement comes three and a half years after the investigations were initiated. Two separate investigations had been conducted by the US Department of Labor’s Office of Federal Contract Compliance Programs. They found that pay discrepancies had affected 211 women total. The allegations did not arise from a particular employee complaint, but rather from LexisNexis providing pay transparency information to the DOL. Upon review, the information appeared to violate Executive Order 11246 – which requires pay transparency and prohibits discrimination based on race, color, religion, sex, sexual orientation, national origin or gender identity by government contractors (which LexisNexis happens to be). In 2015 and 2016, the company had “millions of dollars in federal contracts with the U.S. Departments of Homeland Security, Justice, Transportation and Labor, and the Office of Personnel Management and the General Services Administration”. “It is unlawful for federal contractors to discriminate in pay on the basis of sex,” said Acting OFCCP Director Thomas M. Dowd. “Through this settlement, the affected class members will be compensated for their losses. We are pleased that the contractor worked cooperatively with us and has agreed to review and revise pay policies and procedures as necessary.”

The Department of Labor website FAQ section states that “If a business or organization has a Federal contract, subcontract, or federally–assisted construction contract it may be subject to the requirements of Executive Order 11246. Generally speaking, any business or organization that (1) holds a single federal contract, subcontract, or federally assisted construction contract in excess of $10,000; (2) has federal contracts or subcontracts that have a combined total in excess of $10,000 in any 12–month period; or (3) holds government bills of lading, serves as a depository of federal funds, or is an issuing and paying agency for U.S. savings bonds and notes in any amount will be subject to the requirements of Executive Order 11246.

LexisNexis has agreed to pay the settlement but does not consider it an admission of guilt, as a release from the company clarifies. The full statement reads: “LexisNexis Risk Solutions is committed to ensuring all employees are treated fairly and afforded equal employment opportunities. The findings [by the Office of Federal Contract Compliance Programs] were not based on any individual complaints; rather they were derived from statistical analysis conducted by the agency. The company disagrees with the OFCCP’s findings and does not believe it violated any federal laws. After three and a half years of cooperation during the agency’s review, we ultimately agreed to the settlement to avoid committing additional time and resources for continued legal proceedings.”

LexisNexis is not the only company accused of pay discrepancies based on gender discrimination in a large scale. Pharmaceutical company Merck is currently facing a class action lawsuit of more than 400 women alleging that they also faced gender discrimination. The case began in May 2013 with a single plaintiff, Kelli Smith. She filed the case alleging Merck had discriminated against women by denying them proper pay and promotions, by forcing pregnant women to take leave, and by fostering a hostile work environment which encouraged/allowed sexual harassment. Early in 2014 several other women joined the case, leading to a number which is now in the hundreds.

Gender discrimination cases appear to either be on the rise, or at the very least be starting to receive the media attention they deserve.

 

Sources:

https://www.dol.gov/newsroom/releases/ofccp/ofccp20170112

http://www.sun-sentinel.com/business/fl-lexisnexis-discrimination-settlement-20170112-story.html

http://www.abajournal.com/news/article/lexisnexis_risk_solutions_pays_1.2m_to_resolve_pay_bias_allegations

http://fortune.com/2016/07/21/women-suing-merck-sex-discrimination/

https://www.dol.gov/ofccp/regs/statutes/eo11246.htm

Pregnancy Discrimination – What You Need to Know

The Pregnancy Discrimination Act was passed by Congress in 1978 as an amendment to The Civil Rights Act of 1964. Despite this being in place for nearly 40 years now, women still continue to face workplace discrimination due to pregnancy, or pregnancy-related issues. PDA applies to all employees, regardless of their length of time at a specific employer, so long as the company employees at least 15 people.

If you are pregnant (or may become pregnant), you may be wondering what pregnancy discrimination looks like and how you can protect yourself from experiencing it. Here are some of the most important facts to know about pregnancy discrimination at work.

Employers may not (because of pregnancy):

  • Refuse to hire or promote an employee
  • Terminate an employee
  • Ask interview questions that they would not ask non-pregnant applicants
  • Require employees to give notice of pregnancy (unless it is for a legitimate business purpose)
  • Discriminate against those who may become pregnant
  • Stop a pregnant employee from working if they want to and are physically able
  • Discriminate against an employee that had or considered having an abortion
  • Demand medical notes from a pregnant employee’s doctor concerning work status if they do not require them from non-pregnant employees on short term disability leave

Additionally, employers may not retaliate against an employee/applicant that makes a complaint because they feel they may have been discriminated against. Retaliation could be termination, demotion, or lowering of pay to name a few examples. However, some courts have held that you can be treated differently depending on where you work if you are unmarried and pregnant. It has been stated that religious organizations or ones working with youth may discriminate against employees who violate the organization’s principles condemning pre-marital sex. These employers would have to demonstrate that they hold males to the same standards – and are not only punishing female employees. However, these circumstances are few and far between, and this exemption does not apply to most employers.

Employers must:

  • Hold open a job for pregnancy related absence as long as they would for non-pregnancy related sick/disability leave
  • Provide health coverage on same basis as costs for non-pregnancy related medical conditions
  • Provide the same level of benefits for spouses of male employees as they do for female employees
  • Grant pregnant women on leave the ability to accrue seniority, vacation, pay increases, and temporary disability benefits in the same way as those on leave not due to pregnancy
  • Allow appropriate time/place for lactation purposes, including a private area to pump breast milk

It is important to also consider that a woman may have additional rights under programs such as FMLA or CFRA (in California). Under FMLA (Family Medical Leave Act), a pregnant employee may be entitled to up to 12 weeks of unpaid leave so long as they have worked for the employer at least one year, during which time they worked at least 1,250 hours. Also, the company must employee at least 50 people in a 75 mile radius. This differs only slightly from CFRA (California Family Rights Act) which may allow an additional 12 weeks of unpaid leave after the birth of a child for bonding and care purposes. CFRA does not cover pregnancy as a “serious health condition” and therefore would have to be taken after the exhaustion of either FMLA or Pregnancy Disability Leave, which run concurrently. The eligibility requirements for CFRA and FMLA are the same. Both allow employees to take time off to care for either themselves or a family member. Each includes same-sex spouses in the eligibility, but only CFRA includes eligibility for Registered-Domestic Partners.

If you feel you may have been discriminated against because of your pregnancy or a pregnancy related issue, please call our firm for a free consultation. No woman should have to feel shame for being pregnant, especially not in the workplace.

 

Sources:

http://www.aauw.org/what-we-do/legal-resources/know-your-rights-at-work/pregnancy-discrimination-act/

http://employment.findlaw.com/employment-discrimination/pregnancy-discrimination-in-the-workplace.html

https://www.eeoc.gov/laws/types/pregnancy.cfm

https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/californiadifferencecfrafmla.aspx

https://postdocs.ucsf.edu/fmla-and-cfra-comparison

 

What a Trump Presidency Might Mean for Family Leave Laws

With the Electoral College officially selecting Donald J. Trump as the next President of the United States, many are now wondering what changes may take place upon his inauguration. Particularly relating to employment, you can expect to see many changes including family leave time for workers.

Trump has proposed a plan which would give women who recently gave birth (note, not all new mothers) 6 weeks of partial paid leave through an expansion of unemployment. While this may initially sound great, upon inspection of the plan there is much to be desired. The first issue arises from the source of funding for the program, which is supposed to be unemployment. This is a social service which is grossly underfunded as is, without adding the element of maternity leave. Because of the lack of funding, it is estimated that women on this plan would only receive approximately 30% of their weekly wages.

Other glaring issues with the program include the length of time offered. Six weeks is far below the recommended minimum of 12 weeks for parental bonding time after a child is born/adopted. This brings us to the next issue – the coverage would only be available to women that just gave birth. This means that fathers and adoptive/foster parents are ineligible to the benefits.

There are alternatives to Trump’s proposed plan, including a bill sponsored by Connecticut Congresswoman Rosa DeLauro and New York State Senator Kirsten Gillibrand called the FAMILY Act. The acronym stands for Family and Medical Insurance Leave Act, and would require all employers (regardless of company size) to provide employees (regardless of age/duration of employment) with 12 weeks of paid leave for various reasons. It would not only provide coverage to women that just gave birth, but also to new fathers, adoptive parents, foster parents, or people needing to take time off for their own serious medical condition/to care for a family member with a serious medical condition. In contrast to Trump’s plan which would be through unemployment, FAMILY would be run by a new office of the Social Security Administration. It would be funded by small contributions by employees and employers as a payroll deduction. This may be a concern upon first hearing about the plan, but the deduction is extremely minimal – 2 cents for every $10 earned by the worker. It would enable participants in the program to make up to 66% of their regular weekly wages during their time away from work. Both insurance benefits and administrative costs would be covered by the contributions. In order for the plan to work, all employees would be required to participate in the contribution if the bill is passed (you can’t opt out). If people were able to opt-out, the structure of the funding would be changed drastically, making the deductions too great for those that want to participate.

The FAMILY Act had been gaining support in Congress, and was expected to pass under a Hillary Clinton administration. However, now that Republicans will be controlling both the White House and Congress, the bill will most likely be facing bigger impediments than it did previously.

In order to encourage opponents of paid family to support the policy, a non-profit organization called PL+US intends to put the pressure on nay-sayers. IN addition to a possible political action committee, PL+US will be launching a campaign highlighting companies with excellent paid leave policies – as well as highlighting companies with the worst leave policies.

Currently, the only national family leave program is The Family & Medical Leave Act of 1993, which provides up to 12 weeks of unpaid leave to certain employees to care for themselves or a family member in the event of serious illness. However, the fact that the leave is unpaid is not the only problem with the program. It also comes with many stipulations which leaves a majority of workers ineligible for the time off. The first requirement for an employee to be eligible for leave, is that they must work for a “covered employer”. Covered employers are those which a) employ at least 50 people for 20 or more workweeks in the current or preceding calendar year (private sector) or b) are a public agency (regardless of how many employees). The next qualification is that the employee must have worked for the employer for at least 12 months, and given at least 1,500 hours of service during the past 12 months. Finally, the employee must work at a location where the employer has at least 50 employees within a 75 mile radius. In some situations, the FMLA leave may be taken intermittently as needed.

While it is impossible to say at this point what may happen in the coming year, one thing is clear – big changes are coming to family leave laws. Hopefully, they will be for the better.

Sources:

https://www.dol.gov/general/topic/benefits-leave/fmla

http://www.nationalpartnership.org/research-library/work-family/paid-leave/family-act-fact-sheet.pdf

http://www.nationalpartnership.org/issues/work-family/family-act.html?referrer=https://www.google.com/?referrer=http://qz.com/839086/after-trumps-election-and-clintons-loss-supporters-of-a-paid-parental-leave-bill-in-congress-seek-fresh-help-from-republicans/

http://qz.com/839086/after-trumps-election-and-clintons-loss-supporters-of-a-paid-parental-leave-bill-in-congress-seek-fresh-help-from-republicans/

http://thehill.com/blogs/pundits-blog/healthcare/309533-congressional-leaders-should-reject-trumps-maternity-leave