OFCCP SETTLES SEX DISCRIMINATION CASE WITH GRUMA CORP

by Art Gutman Ph.D., Professor, Florida Institute of Technology

The OFCCP announced a $167,000 settlement agreement in a sex discrimination claim with Gruma Corp, a corn flour and tortilla manufacturer (OFCCP v. Gruma Corp., DOL OALJ, No. 2009-OFC-0007, order 10/20/10). The text of the consent decree may be viewed here.

The decree follows a compliance review of Gruma Corp.'s Mission Foods facility in Commerce, Calif. The allegation was that the company discriminated against female applicants in hiring for packer and disco/palletizer positions between Oct. 1, 2004, and Oct. 31, 2005, in violation of Executive Order 11246. Gruma is headquartered in Irving, Texas. The award represents back pay and interest for a class of 1,106 female applicants. The decree also requires that Gruma offer up to 20 positions, as they become available, for qualified class members, and submit periodic progress reports to OFCCP for 24 months. These reports must include the amount of monetary benefits paid to class members and an applicant-and-hire flow log for packer and disco/palletizer positions. The flow logs must breakdown total number of applicants and hires by gender during the reporting period, and conduct a statistical analysis of that data to determine whether the selection process has an adverse impact on any protected groups. Furthermore, if there is any adverse impact, Gruma must report “any remedial actions taken.”

The decree specifies that there is no admission of guild by Gruma. Gruma noted that there were no complaints filed by any of the applicants, and that it “has always been in compliance with the OFCCP employee selection procedures by hiring appropriately and fairly”.

NEW EDITION OF EEO LAW AND PERSONNEL PRACTICES IS AVAILABLE

by Eric Dunleavy, Ph.D., Senior Consultant, DCI Consulting Group

For those of you looking for an excellent and current EEO/AA reference, the newest edition of Art Gutman’s EEO Law and Personnel Practices is now available.

This edition, co-authored by Laura Koppes and Steve Vodanovich, is an excellent resource for HR practitioners, compliance analysts, consultants, and lawyers who work within the landscape of personnel selection and EEO/AA law. This volume offers a contemporary and comprehensive review of all EEO/AA statutes, an encyclopedic summary of case law, recent OFCCP and EEOC enforcement initiatives, and useful compliance and practice recommendations. As the reviews below suggest, the book is an excellent resource:

"Dr. Gutman and authors have produced the most authoritative treatment of EEO law and its applications to human resources management available today." - Edward Levine, Psychology, University of South Florida, USA

"The authors have developed a thorough volume. In fact, by increasing the coverage of compliance issues, they have increased the audience diversity so that the third edition is likely to be of more value that the 2nd edition to EEO practitioners, organizations and students." - Jerard F. Kehoe, Selection and Assessment Consulting, LLC

"The book is deceptively simple, but it clarifies the essentials of EEO laws and does so with frequent linguistic gems. The general scope of legislation and litigation is clearly organized and described, with close attention to current status of both statutory and case law. It is a necessary book for those new to EEO problems, and a handy one to wake up those who think they've lived through it all already." - Robert Guion, Emeritus, Bowling Green State University, USA

"This book should be required reading and available for reference to all those who do research on or are engaged in any way in the human resource function. The legal system is an integral part of the manner in which organizations deal with people and this book is a readable and thorough explanation of the issues and questions that arise in all aspects of human resource management. This new edition is up-to-date and thorough in its treatment." - Neal Schmitt, University Distinguished Professor, Michigan State University, USA

"EEO Law and Personnel Practices is a very important and somewhat unusual book. It is one of the few books that considers so many of the issues facing the workplace in this changing society. Its broad range includes issues related to race, religion, national origin and sexual discrimination. What makes it special is the depth of the coverage of each of the issues. Thus, for example, the discussion of national origin covers citizenship requirements as well as speak English only rules. For each of the important topics, the authors cover both the history of the issue, the research and the judicial decisions. This is must reading for anyone involved in practice or research in organizations and most importantly for students who will be entering this dynamic and rapidly changing field. The authors are to be congratulated." - Irwin L Goldstein, Senior Vice Chancellor for Academic Affairs, University System of Maryland, USA

FINAL SETTLEMENT IN VELEZ V. NOVARTIS

by Art Gutman Ph.D., Professor, Florida Institute of Technology

In May 2010 we reported the results of a 5-week jury trial in Velez v. Novartis Corp. in which the jury deliberated for four days. The essence of that report was that the jury awarded nearly 3.4 million dollars to 12 named female plaintiffs for lost wages and compensatory damages. But as noted in the May alert, that was just the appetizer, as the jury also awarded 250 million dollars in punitive damages for a class of 5,600 current or former female sales representatives employed between 2002 and 2007.

On November 19, 2010, Judge McMahon held a fairness hearing at which no objections were raised by either side as she granted final approval of up to 152.5 million dollars in monetary relief for 6,026 female sales employees who worked at Novartis from July 15, 2002 through July 14, 2010. In addition to the monetary relief, Novartis agreed to an additional 22.5 million dollars in nonmonetary relief representing the company’s commitment to revise employment policies so as to eliminate sex discrimination.

The monetary relief breakdown includes 38.1 million dollars for attorney’s fees and 2 million dollars in litigation costs. David Sanford of Sanford Wittels & Heisler, the planitffs’ attorney, said “this is an excellent monetary agreement for sales representatives of Novartis”, and “more importantly, Novartis will be a better company going forward; it is changing its ways and doing the right thing.” It’s also an excellent monetary agreement for the law firm, and illustrates the costs of fighting large class action suits.

NLRB CHALLENGES FIRING OVER FACEBOOK POSTINGS

by Art Gutman Ph.D., Professor, Florida Institute of Technology

Based on published reports, the National Labor Relations Board (NLRB), which enforces the National Relations Labor Act (NLRA), has accused American Medical Response of Connecticut of firing Dawnmarie Souza, a medical technician, for violating the company policy of depicting the company “in any way” on Facebook (see, for example, this article). What’s interesting here is that recently, one of my students wondered aloud if there were any legal consequences for saying nasty things about employers on Facebook, and if there is any case law on the topic. We did a quick search on Lexis/Nexis, and as far as we can tell, this is a first. An administrative law judge will hear the case beginning January 25, 20100. The facts of this case are thought provoking.

As a starting point, it should be noted that the NLRB was created in 1935 as part of the NLRA with the purpose to "serve the public purpose by reducing interruptions in commerce caused by industrial strife. It seeks to do this by providing orderly processes for implementing and protecting the rights of employees, employers and unions.'' (see NLRB manuals here). Its two main functions are to oversee unionization elections and to respond to complaints of unfair labor practices. The NLRA applies to private entities independently of whether they are unionized.

According to published reports, Souza was ordered to prepare a response to a customer’s complaint about her work and her supervisor would not allow a union representative to help prepare her response. Souza then mocked her supervisor on Facebook using vulgarities and suggesting he had a mental illness. Her posts drew supportive comments from several co-workers.

The critical issue is that the NLRB permits employees to discuss and criticize their employers among themselves. Thus, it would be illegal to fire an employee who, for example, was overheard having a conversation at the office water cooler. The question here is whether this protection extends to similar conversations on social networking sites. The company claims Souza was terminated for multiple serious complaints about her behavior, including personal attacks against a co-worker, also posted on Facebook.

Regardless of how this case plays out, the NLRB has sent a strong message that companies with policies relating to social networking by employees will be closely monitored in the future.

SENATE VOTES AGAINST PROCEEDING TO DEBATE ON PAYCHECK FAIRNESS ACT

by Fred Satterwhite, Senior Consultant, DCI Consulting Group

This morning, the U.S. Senate rejected a motion to proceed to a floor debate on the Paycheck Fairness Act (S.3772) by a tally of 58-41. The motion to invoke cloture required at least 60 votes in favor to move forward to consideration of the bill on the Senate floor, but only 58 senators voted in favor. This vote means that the Act, which the White House has been championing in recent months, is dead for now.

The results of the roll call vote are available on the U.S. Senate web site.

OFCCP TO DISCONTINUE I-9 INSPECTIONS

DCI Consulting Group has learned that OFCCP will no longer conduct I-9 inspections during the course of an on-site investigation. OFCCP has reviewed I-9 compliance under a long-standing Memorandum of Understanding (MOU) between the DOL and Immigrations and Customs Enforcement (ICE) within the U.S. Department of Homeland Security. However, OFCCP lacked the enforcement authority for I-9 non-compliance. Meaning, if OFCCP identified an I-9 violation they didn’t have the authority to levy financial penalties but they could refer the information obtained during the review to ICE. As you know, the inspection of I-9s during an on-site review required a tremendous amount of time and resources from OFCCP and this may have been one of the reasons why OFCCP decided to discontinue inspecting I-9s. Obviously federal contractors should continue to maintain and keep up with I-9 compliance in accordance with current regulations.