B & H Foto and Electronics Corp. paid its Hispanic employees less than their non-Hispanic co-workers, according to a lawsuit filed on behalf of 149 Hispanic warehouse workers.

The company was also accused of failing to provide health benefits to Hispanic workers and promote them because of their national origin.

Result: The company was forced to settle and pay out $4.3 million in wages and benefits to the 149 employees.

As part of the settlement, B & H agreed to:

• equalize Hispanic employees’ wages with other workers’ pay
• maintain a written non-discrimination policy
• conduct supervisor training
• post bilingual wage-and-hour and benefits notices, and
• submit to Equal Employment Opportunity Commission (EEOC) audits for the next five years.

“Have a seat,” HR manager Lynn Rondo said as supervisor Todd Koehler walked into her office. “I have a few questions about Chekandino Miller.”

“OK, fire away,” said Todd. “What do you want to know?”

“What’s the story behind his nickname?” she asked. “Chekandino is suing us for racial bias.”

“What? That’s ridiculous,” said Todd, shaking his head.

“Well, he’s pointing the finger at you. That’s why I called you in. We need to discuss this nickname – and a couple of other issues, too.”

What’s in a name?

“Oh, please! His nickname is ‘Dino.’ How is using his nickname discriminating against him?”

Lynn sighed. “Chekandino said you referred to him as Dino because it sounds less African than his given name.”

Todd stared at her. “You’re kidding.”

“He also claims you approved time off for his white co-workers, but not for him,” said Lynn.

“No way. The other guys put in for vacation time before he did. First come, first served is my policy. And the nickname is the craziest part. Dino is just easier to pronounce. Even his wife calls him Dino.”

Chekandino sued, claiming racial discrimination. The company tried to get the case thrown out.

Did the company win?

Answer:

No, the company lost.

The company said the managers hadn’t discriminated against Chekandino because he’d given out vacation on a first-come, first-served basis. The company’s lawyers even got ‘Dino’ to admit his wife called him by that nickname.

But the judge looked at the supervisor’s decisions – denying earned vacation time and refusing to call the employee by his given African name – and concluded the string of events may have been racially motivated.
Alone, the nickname didn’t amount to bias, but when combined with the other circumstances, a jury might find the supervisor’s actions were motivated by bias, said the judge.

Now the company faces a costly trial – or an expensive settlement.

Analysis: Comments may amount to bias in court

In today’s litigious world, your managers can get your company in trouble with just a small slip of the tongue. Words count. Offhand comments may not seem like much, but what’s innocuous to a supervisor may well be obnoxious to an employee.

Which means it’s more important than ever to stress to your managers the importance of watching what they say – your company could end up in court if they don’t.

Cite: Tefera v. City Center Parking

September 30 is the deadline date for some employers filing an EEO-1 Report with the Equal Employment Opportunity Commission. Here’s help with doing a last-minute check to make sure your report complies with EEOC rules. 

The EEOC uses the EEO-1 Report to analyze patterns of employment discrimination, enforce civil rights regs and evaluate employers’ efforts at hiring females and minorities. All of that has put pressure on the agency to ensure it’s getting accurate data from you. To make sure of that, EEOC has made some changes for 2008 in how it expects to receive the data and how you obtain it.

Some of the standards were optional last year – as a transition phase – but are now required.

 Here’s a guide on what to check for in your EEO-1, from the law firm of McGuire Woods:

 Key changes introduced as optional in 2007 and mandatory in 2008

• Adoption of self-identification as the preferred method of determining race and ethnicity
• Preference for a two-step inquiry in seeking employee self-identification
• Creation of new race and ethnicity categories: Hispanic or Latino” (instead of “Hispanic”), “Black or African American” (instead of “Black”), “Asian” and “Pacific Islander” (two categories to replace the previous single “Asian and Pacific Islander” category), and a new “Two or More Races” category
• Changes in the definition and number of job categories (e.g., subdividing “Officials and Managers” into Executive / Senior Level and First / Mid-Level Officials and Managers; movement of some occupations to Professionals or Operatives; renaming some job categories), and
• Mandatory race and ethnicity reporting by employers in Hawaii (which previously only had to report gender).

Note: The new form strongly encourages employers (a) to ask their employees to self-identify their race or ethnicity and (b) only to rely on visual identification when an employee refuses to self-identify. It is not permissible, however, to force employees to declare their racial classification.

The Two-Question Format

In addition to the above category changes, the EEOC prefers that employers use a two-question, Q&A format when asking for self-identification of race/ethnicity. Under the envisioned structure, employees are asked:

1. Are you Hispanic or Latino?

2. If you answered “No”, please select one of the following categories that best describes your race/ethnicity:

• White (Not Hispanic or Latino).
• Black or African American (Not Hispanic or Latino).
• Native Hawaiian or Other Pacific Islander (Not Hispanic or Latino).
• Asian (Not Hispanic or Latino).
• American Indian or Alaska Native (Not Hispanic or Latino).
• Two or More Races (Not Hispanic or Latino).

According to the EEOC, this revised structure is required because the category “Hispanic or Latino” is an ethnicity category that describes “a person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin, regardless of race.” (Emphasis added). The other listed EEO-1 categories (e.g., White, Black or African American) relate to racial categories for individuals who are otherwise not included in the “Hispanic or Latino” ethnicity grouping. The EEOC also favors the two-question format on the grounds that it has been shown to yield more accurate data about Hispanics and Latinos.

Two or More Races

Although the EEOC adopted a new “Two or More Races” category for the EEO-1, the regulations do not require employers to detail which racial combinations constitute that category. The EEOC cited statistics that showed only 2.4% of respondents identified themselves in the “Two or More Races” category in the 2000 Census.

Click here to access a PDF of the latest format for the EEO-1.  Click here for the full instruction booklet on filling out the EEO-1.

The facts: 
A supervisor cited and documented the poor performance of an employee of Arab descent. After issuing at least two warnings about the performance and confronting the employee with records that verified the charges, the supervisor fired the employee. The employee came back with a lawsuit noting that the supervisor had asked the employee if he knew any terrorists and whether he was barred from traveling on airplanes. Given that, the employee argued, it was clear that the supervisor had fired him because of his heritage, and not for his performance.

The employer said:
The company noted that the supervisor had produced ample evidence of low performance that warranted termination. Although the supervisor admitted making the terrorism-related comments, the company insisted that the comments were offhand and played no part in the decision to fire the employee.

Who won the case?

 Answer: The company. 

Why: The supervisor had kept a record of the employee’s performance problems and the warnings about what would happen if the performance didn’t improve. Since there was no disputing the record, the court said the supervisor had solid backing for the action.

As for the supervisor’s comments, the court noted they were in bad taste and insulting, and might have supported the discrimination charge if there hadn’t been sufficient documentation about the employee’s performance. However, the comments weren’t enough to support the charge of discrimination when real performance problems entered into the decision to terminate.

Cite: Claude v. Harbor Hospital Center.

Here’s what the employment-law experts at the law firm of Frederickson & Byron recommend:

Don’t ignore the letter. If you do, U.S. Immigration and Customs Enforcement ICE could cite the inaction as proof that you knew you employed an unauthorized worker. So, first, check your records to ensure there’s no typographic error in reporting the employee’s SSN.

• If there’s no error:
  1. Share the “no match” letter with each employee listed on the letter.
  2. Advise the employee to check to be sure that the correct name and SSN has been submitted to the SSA.
  3. Don’t require the employee to produce his or her social security card or any other specific documentation; that could be considered document abuse under employment-eligibility-verification laws.
  4. Give the employee a reasonable amount of time to investigate and/or correct any errors.
• If there is an error: In addition to submitting the correct information to the SSA, you should also correct the employee’s Form I-9. As with any employment matter, be sure to treat all employees listed on the “no match” letter similarly without regard to the employee’s national origin, race or citizenship status.
• If an employee admits to a false SSN: You must immediately terminate employment with your company.
• If an employee verifies that the information given is correct: Ask the employee if he or she can provide any other reason for the “no match” letter. If there’s none, report back to the SSA in writing that the company has reverified that the information submitted is correct and that neither you nor the employee can explain the discrepancy. Ask the SSA to contact the company if any additional employer action is required.
• If an employee verifies that the information given is correct but you uncover additional information: You may learn that, for other reasons – such as an admission of illegal residence – that the employee is unauthorized to work in the United States. If so, you terminate employment. Note: Without other evidence, a co-worker tip in and of itself isn’t basis for termination, or even reverification of an I-9.

Here are two example problem areas cited by the Equal Employment Opportunity Commission.

1. Strength and dexterity
For certain manual-labor jobs, you require that candidates take a standard strength and dexterity test. And you require the test of every applicant for that type of job. So far, so good. That’s legal.

However, suppose few or no women are able to pass the test, and just about every person you hire for the job is male. That could be a problem if EEOC comes knocking or an unsuccessful candidate decides to sue.

How to protect yourself: Double-check and certify that the test requirements are closely related to job in question, and not just general requirements that someone dreamed up years ago. For instance, if a worker is routinely required to lift 50 pounds or climb steps, it’s reasonable to test for that, and to accept only candidates who meet those requirements.

2. Reading and aptitude
Consider this situation. Sitting before you is an applicant who, for a variety of reasons, appears to have problems communicating in English but otherwise seems qualified. Question: Can you require a reading test for the applicant to ensure he or she will meet minimum standards? Answer: It depends.

If you routinely give the reading test to all applicants for that job, you’re pretty much in the clear. But if you selectively give the test, and it appears that your targets come mainly from certain ethnic or racial groups, you have a problem – whether or not you intentionally target such groups or it just happens that way.

How to protect yourself: Probably your best bet is to decide whether such a test is necessary to determine if the person can do the job, and then go ahead and give the test to all such applicants. Remember, again, that the test must be related to the job, just as with the strength and dexterity test.

To see EEOC’s full advisory on the topic, go to:
www.eeoc.gov/policy/docs/factemployment_procedures.html

You still have time to review your hiring and employment procedures and avoid the new, more expensive penalties that the U.S. Department of Homeland Security has laid out for violations that take place the end of this month.

Here are the violations and the changes in penalties:

Hiring, recruiting and referring undocumented workers.
Old penalties: Fines of $275 to $2,200 per individual for a first offense, increasing to a maximum of $11,000 after two prior violations.
New penalties: Fines ranging from $375 to $3,200 for a first offense, up to a maximum of $16,000 for multiple prior violations.

Employing undocumented workers
Old penalties: Fines ranging from $275 to $2,200 per person for a first offense, increasing to a maximum of $11,000 after two prior violations.
New penalties: Fines ranging from $375 to $3,200 for a first offense, up to a maximum of $16,000 for multiple prior violations.

Unfair Immigration-Related Employment Practices
Old penalties: For unfair immigration-related employment practices, such as discrimination against job applicants or employees based on nationality or citizenship status, range from $275 to $2,200 per act for a first offense, increasing to a maximum of $11,000 after two prior violations.
New penalties: Fines ranging from $375 to $3,200 for a first offense, up to a maximum of $16,000 for multiple prior violations

Form I-9 violations
Penalties remain the same for failure to properly complete the Form I-9 or failure to retain the Form I-9 for the required period of time: $110 to $1,100 per violation.