Archbright™ Insights October 2014

EEOC targets Washington grower, Texas pharmacy for pregnancy discrimination HR Advice and Counsel Insights

Washington’s minimum wage will increase 15 cents to $9.47 an hour beginning Jan. 1, 2015, the Department of Labor & Industries (L&I) announced today. L&I calculates the state’s minimum wage each year at this time as required under Initiative 688, which Washington voters approved in 1998. The change reflects a 1.59% increase in the federal Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) over the last 12 months ending Aug. 31. The federal Bureau of Labor Statistics announced the change in the CPI earlier this month. (Please see Page 8 for current CPI-W figures). The change will affect more than 67,000 workers, based on full-time equivalent positions according to the Washington State Employment Security Department. The per hour increase will total $312 per year. The minimum wage applies to workers in all industries, including agriculture, although 14- and 15-year-olds can be paid 85% of the adult minimum wage, or $8.05 an hour. Washington has the highest state minimum wage in the nation, followed by Oregon, where the minimum wage will increase to $9.25 – an increase of 15 cents – in 2015. Washington is one of at least 10 states that adjust the minimum wage based on inflation and the CPI. Others include Arizona, Colorado, Florida, Missouri, Montana, Nevada, Ohio, Oregon and Vermont. More information on Washington’s minimum wage is available at Wages.lni.wa.gov. Employers and workers also may call 360-902-5316 or 1-866-219-7321. Washington’s Minimum Wage will Increase 1.59% in 2015

The EEOC has separately filed discrimination lawsuits against employers in Washington and Texas who purportedly fired employees because of their pregnancies. The pair of suits is another in a series of moves that underscore the EEOC’s continuing commitment to curb pregnancy discrimination. In mid-July, the EEOC issued its comprehensive, updated guidance on pregnancy discrimination and related issues, including the intersections between pregnancy and the ADA, the FMLA, and a section on the Patient Protection and Affordable Care Act’s (ACA) requirement that employers provide “reasonable break time” for nursing mothers. The updated guidance is “extremely far-reaching,” according to David Fram, disability law expert and director of ADA & EEO services for the National Employment Law Institute. Since the start of fiscal year 2011, the EEOC has filed over 45 lawsuits involving pregnancy discrimination, recovering about $3,500,000 in monetary relief, as well as important injunctive and other case-specific “make whole” relief for victims of pregnancy discrimination through its litigation program. On September 15, EEOC filed a complaint against Tiny’s Organic, asserting that the Wenatchee, Washington, fruit grower violated Title VII (as amended by the Pregnancy Discrimination Act) by firing a farm worker for becoming pregnant. The employee had worked for the grower for six years and had been promoted to supervisor, according to an agency announcement. During her tenure as supervisor, she had gone through an earlier pregnancy allegedly without any working restrictions. Tiny’s Organic fired the employee nine days after she disclosed that she was again pregnant, this time with twins. The grower cited fears for the employee’s safety and the company’s liability, even though her doctor had cleared her to perform the job without medical restrictions, according to the EEOC.

EEOC District Director Michael Baldonado issued this warning:

“Employers be aware: You do not have the medical or legal authority to decide when and how your pregnant employee works. Leave this arena to your employees and their doctors.” The agency also announced that it has filed a lawsuit against Tomeldon Company, Inc., dba Pharmacy Solutions, asserting that the Texas pharmaceutical business violated Title VII by firing two employees due to their pregnancies. The agency said the employees were fired just weeks apart. A pharmacist at Pharmacy Solutions purportedly notified the company’s owner that she was pregnant in June 2012. Starting in November 2012, when the pharmacist was making visits to her doctor, the owner made a number of remarks about the pharmacist’s condition. The owner allegedly fired the pharmacist in March 2013 while she was on maternity leave. A pharmacist technician was also fired because of her pregnancy during March 2013. She had reportedly informed the owner that she was pregnant by leaving a note for him that included a request to switch her days off in order to see her doctor. The owner allegedly had made negative comments to the technician based on her pregnancy. “This is the second pregnancy discrimination filed by the EEOC’s Dallas District Office in the past 30 days,” said EEOC Regional Attorney Robert Canino noted. “I am surprised that this issue continues to be a recurring theme in the workplace in this day and age. We hope that by continuing to increase public awareness through our law enforcement efforts, we will see more of an awakening by some companies about the right of a woman to hold on to her job and to earn a living when she is expecting and during her maternity leave.” Source: CCH

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