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Friday, May 30, 2014

Pasta Restaurant Settles Harassment Suit for $200,000


by Tommy Eden 



The Equal Employment Opportunity Commission (EEOC) alleged in a Maryland Federal Court lawsuit that Basta Pasta restaurant owner Michael Sakellis repeatedly subjected female employees, some of whom were teenagers, to unwelcome and offensive sexual harassment, including touching them on their buttocks, lower backs and shoulders; rubbing himself against the buttocks of female employees; leering at female employees and making comments about their bodies, including calling them "sexy" or "hot;" making sexually suggestive remarks and crude sexual innuendos; and asking for massages. Basta Pasta's slogan is "Good food, Honestly prepared."  

Also, according to the allegations of the Complaint, the owner pressured female employees to have alcoholic drinks at the end of their shifts causing one employee to pass out and later wake up vomiting, and she believed the owner drugged her in an attempt to sexually assault her.  The EEOC lawsuit also charged that the owner took another female employee to his house, purportedly to talk about a management opportunity, but instead the employee believes he drugged and sexually assaulted her.  The identities of the girls were protected in the Complaint. 

These two employees of Basta Pasta found the sexual harassment so intolerable that both felt compelled to quit their jobs, the EEOC said in the lawsuit. The EEOC also claimed in the lawsuit that a restaurant manager had complained to management about the owner's sexually offensive behavior but was told to "keep her mouth shut" and later she was fired in retaliation for her opposition to the sexual harassment and her participation in the EEOC investigation. 

This week Basta Pasta agreed to pay $200,000 to settle claims of sexual harassment of workers and retaliation against the manager who complained about the behavior. The federal judge who approved the settlement also approved a three-year consent decree enjoining Basta Pasta from creating or maintaining a hostile work environment based on sex or engaging in unlawful retaliation in the future, and the restaurant must hire an independent monitor to investigate any sexual harassment or retaliation complaints and a claims process for victims to come forward.  

Common Sense Counsel: This case should be a wake-up call for all employers in the hospitality industry to not “let slide” this type of blatant and allegedly predatory conduct. Having a legally compliant Professional Conduct Policy and Prohibition Against Harassment Policy, annual employee-wide training, designating a two person reporting chain, prompt and effective investigation of complaints and taking proper remedial actions are keys to good risk reduction. Even an owner is not exempt and needs to make sure his conduct lives up to his slogan. 

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at alabamaatwork.com.

Sunday, May 25, 2014

Honoring our Vets

by Tommy Eden



With Memorial Day tomorrow, its time for employers to reaffirm their duties under federal laws that affect the employment of our U.S. military veterans. Keeping these four principles in mind will help you be a better employer to those who serve.

First, the Uniformed Services Employment and Reemployment Rights Act (USERRA) requires employers to rehire employees who return from a period of active duty of up to five years and who apply for re-employment when they come back. Employees returning from a period of active military duty have only a certain amount of time to apply for re-employment, based on how long they spent in the service. But, if they timely return, re-employment to their former position and rate of pay is mandatory, with only a few exceptions.

Second, USERRA prohibits employers from discriminating against veterans returning from active service, refusing to hire someone returning from active duty based on his or her military service, or passing up veterans for promotions or firing them “on the basis of an individual’s veteran or servicemember status.” Doing so will get you a quick phone call from an USERRA advocate who works with the Department of Labor.

Third, the 'Escalator Principle' specifies that returning veterans must be re-employed at whatever position they would have obtained if they had not gone into the military but had remained in their job. The escalator principle extends to other aspects of the relationship between an employer and employee, including leave and pension benefits, and maybe vacation or sick time that an employee would have accrued during the period of time he or she spent during active duty, depending on employer policies.

Fourth, accommodation requirements for disabled veterans under USERRA obligate employers to provide a reasonable accommodation for a returning veteran with a disability. The employer is also required to make an effort to place the disabled veteran into a position he or she could be qualified for if they cannot perform their old job duties.

Common Sense Counsel: Consider training supervisors that employees returning from military service may have behaviors or issues that are directly related to military service in the field of combat. Providing a mentor who is a former military member themself would help a newer returning veteran quickly learn the do’s and don’ts of working in the civilian world. Of course, a legally compliant USERRA policy is your very first step to communicating to all your commitment to follow the law.

This topic is personal to me because my Dad served in the Navy for 23 years and will be the City of Auburn Distinguished Veteran at the Mayor’s Memorial Day Breakfast.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901.

Tom Eden, 2014 Distinguished Veteran


Tom Eden (Father of Tommy Eden, Blog Author) is the City of Auburn's 2014 Distinguished Veteran. Click the link below for video.



Thursday, May 15, 2014

Public Employee Drug Testing Lessons



Micheal Hudson, a multi-media specialist for the City of Riviera Beach, FL was ordered by Human Resources Director Doretha Perry to take a reasonable suspicion drug test. When Hudson later revoked the city's access to the results of his hair sample drug test, he was fired for refusal to take the test.  

Hudson then filed a lawsuit in Federal Court alleging that Perry violated his rights under the 4th Amendment to the U.S. Constitution by ordering him to submit to the drug tests or risk termination because of alleged bad blood between Hudson and Perry's son Troy, who also worked for the City. Hudson's direct supervisor and his supervisor did not request that Hudson be tested or suspect Hudson of drug use. Hudson had consistently received "excellent" evaluations and had never been reprimanded or disciplined in his four years of employment with the City, and Hudson did not work in a safety-sensitive position or perform safety-sensitive functions, according to the allegations of his complaint  

After reluctantly taking a Breathalyzer test (negative), a urine test (negative), and a hair-sample test, Hudson asked Perry what the reasonable suspicion was for the testing and requested that Perry provide him with any records supporting reasonable suspicion. According to Hudson’s complaint, Perry became infuriated and retorted, "It does not work like that[.] [T]here are no records[.] I don't have to give you copies of anything." When Hudson responded by showing Perry the Florida Drug Free Work Place Act, Perry allegedly taunted him, asking what he was going to do.  

Perry later provided Hudson with a one-paragraph explanation for why she ordered the drug testing stating that she had "received several complaints from employees alleging [Hudson's] eyes were glassy and he smelled like marijuana,according to allegations in the complaint. It did not identify which employees had allegedly complained about Hudson, and Perry later stated that she could not recall who had complained and could not even remember the gender of the allegedly complaining person or persons. Perry never informed Hudson's immediate supervisor that she had received complaints about Hudson and during a later unemployment hearing Perry contradicted herself saying that she had tested Hudson "on a whim[,] a mere hunch," and that she had been determining who to drug test in that manner "for years."  


Last week Judge Rosenbaum of the U.S. District Court for the Southern District of Florida ruled that Perry's drug test directive wasn't supported by individualized suspicion under the Fourth Amendment to the U.S. Constitution. Judge Rosenbaum held that “With respect to drug-testing of public employees, the Supreme Court has authorized random, suspicionless searches only where the nature of the individual's employment implicated public safety,” The judge continued that this was not the case in regards to Hudson. “This is in no way related to any public-safety measure or other recognized government interest supporting a suspicionless search … In the absence of any suspicion at all, such a personal and abusive use of the government's power to conduct drug testing so obviously violates Fourth Amendment rights that no case law stating this proposition was necessary.” Case is Hudson v. City of Riviera, FL Click here for full text of opinion.
 
Common Sense Counsel: Opportunities to learn from other's mistakes is always the best way to read these cases. Public employee drug and alcohol testing is walking the 4th Amendment tightrope of a legally permissible search balanced again public and employee safety and other safety sensitive issues. Using these 5 counterweights will help keep you balanced: 1) have your policy and essential forms updated to meet 4th Amendment standards as federal regulations, best practices, state laws and cases are constantly changing; 2) make sure all supervisors have been trained on reasonable suspicion within the last 12 months with a test and sign off; 3conduct employee awareness training on your updated policy; 4) adopt a pre-duty impairing effects disclosure safety policy; and 5) know who you are going to call when you start to lose your balance so you will not be the next lesson I write about.  

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901.