“This & That” Tuesday 12.10.16 by Martin Levy

by hr4u.
Oct 20 12

Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.



You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners. More details about the events and Human Resources 4U can be found on my website.


My next engagement is entitled "Leadership in Organizations Today" It will be held on Friday, November 2 and is sponsored by the Financial Service Resource Group and will be held in Ontario, CA. For more information please go to my website.


Labor Law Update 2013: If you are interested in having me give a “Labor Law Update for 2013” presentation to your organization early next year, please contact me so we can schedule the event.


New Workshop: HR4U 101 for 2013

I will offering this full day workshop on January 9, 2013. For details, download the flyer.


Attention: Have you taken the HR4U mini-Human Resources audit, yet?


Social Media

Social Media can be a troublesome area for employers; therefore, I’ve added the Social Media policy template from the NLRB to my website. I hope you find it useful.



Did you know that you must now provide a “Summary of Benefits and Coverage” (SBC) for all health plans with enrollments beginning after 9/23/12. There are very specific requirements that go along with the SBC. If you don’t know what this is, contact your insurer or health insurance broker to make sure the SBC is properly drafted and distributed.


Back Pay May be Based Upon Position not Awarded by a Different Employer

It is generally understood that employees can bring Title VII claims – and be awarded damages – for hostile environment, wrongful termination, and retaliation. What is less clearly understood is the extent of the economic damages for which a former employer may be liable in the situation in which a litigant claims to have lost a job opportunity because of a retaliatory action on the part of that former employer. A Circuit Court recently answered that question by quoting the wording of Title VII, and holding that the law “does not require that the employer liable for back pay be the same entity for whom the plaintiff would have worked had he not suffered unlawful retaliation.”


In 2001, Naiel Nassar was hired by the University of Texas Southwestern Medical Center (UTSW) as an Assistant Professor of infectious disease medicine. Part of Nassar’s duties required that he provide patient care at Parkland Hospital’s Amelia Court clinic, an outpatient HIV/AIDS clinic affiliated with UTSW.


In 2004, UTSW hired Dr. Beth Levine as the chief of its infectious disease program. In that role, Levine directed that Nassar begin billing for the services he provided to the HIV clinic. Nassar objected to the directive, arguing that his salary for clinical services was fully funded by a federal grant, and stating that billing the patients therefore would be “double dipping.” Based on his concerns about billing, Nassar ultimately applied for direct employment by Parkland Health & Hospital System in 2006. Parkland made preparations to hire Nassar, drafting a letter offering a staff physician job to Nassar. However, the offer was later withdrawn. Nassar contended – and testimony supported the claim – that UTSW retaliated against him by blocking the offer from Parkland because Nassar stated in his resignation letter that his primary reason for leaving UTSW was his boss’s harassment and discriminatory comments. Nassar ultimately accepted a job in a smaller clinic in Fresno, California, and filed a lawsuit against UTSW in federal court alleging discrimination/constructive discharge and retaliation.


The Court upheld the jury’s verdict on the retaliation claim, and further upheld the method used by the jury to calculate Nassar's lost income. The district court allowed the jury to calculate the lost pay by comparing Nassar’s prospective income from Parkland ($240,500 a year, including benefits) to the amount that he was earning in California. Using that method, the jury awarded Nassar $436,167.66 in lost back pay. The Fifth Circuit upheld that award because it made Nassar whole by placing him in the position that he would have been in “but for” the retaliation.


This case is a strong reminder that unlawful retaliation can take the form of a former employer preventing an individual from getting a job with another employer. Under Title VII, lost income is payable by the employer responsible for the unlawful employment practice, and may be calculated as the difference between the individual’s former pay, and that which he would have earned had the retaliation not occurred. If, as in this case, evidence indicates that the retaliation kept the individual from moving to a more highly lucrative position, the former employer risks being liable for the loss of a substantially higher wage.


AutoZone to Pay $75,000 to Settle EEOC Religious Discrimination Lawsuit

AutoZone, Inc., a Fortune 500 distributor and retailer of automobile parts, will pay $75,000 plus attorneys’ fees and provide other nationwide relief to settle a discrimination lawsuit filed by the EEOC. The lawsuit, filed in September 2010, charged that AutoZone violated federal law when it subjected Frank Mahoney Burroughs, an employee who had converted to the Sikh religion, to harassment and refused to accommodate his religious need to wear a turban.


According to the EEOC AutoZone managers at its Everett, Mass., location harassed Mahoney Burroughs by disparaging his religion, asking if he had joined Al-Qaeda and whether he was a terrorist. AutoZone also failed to intervene when customers referred to him as “Bin Laden” and made terrorist jokes. The EEOC also charged that AutoZone refused to let Mahoney Burroughs wear a religiously mandated turban and kara (a religious bracelet). Finally, the EEOC alleged that AutoZone terminated him because of his religion and in retaliation for asking for an accommodation and complaining about discrimination.


The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process. In addition to the monetary relief, the decree requires AutoZone to adopt a policy prohibiting religious discrimination; train its managers and human resource employees on religious discrimination and the new policy; report to the EEOC on its handling of all requests for religious accommodation and complaints of religious harassment; distribute the new policy; and a notice regarding the consent decree to its 65,000 employees in more than 4,500 U.S. stores.



Beehive of Vernal to Pay $22,000 to Settle EEOC Pregnancy Discrimination Suit

Beehive of Vernal, Inc., which operates nursing homes in Vernal, Utah, has agreed to pay $22,000 and furnish other relief to settle a pregnancy discrimination lawsuit filed by the EEOC.


According to the EEOC’s lawsuit, Beehive’s owner offered an assistant manager’s job to a replacement upon learning of the assistant manager’s pregnancy, repeatedly asked her when she planned to stop working, and subjected her to closer scrutiny, ultimately compelling her to quit. The EEOC also charged that Beehive’s owner repeatedly asked another assistant manager when she planned to stop working upon learning of her pregnancy, demoted her, and ultimately stopped scheduling her for work, effectively terminating her.


Pregnancy discrimination violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA). The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process. In addition to the monetary settlement, Beehive has agreed, among other things, to provide its employees, supervisors, managers and human resources employees with annual training for three years on pregnancy discrimination, and to make periodic reports to the EEOC.



  • 22% of employees say “personal relationship issues” are the biggest distraction at work and 19% said it was “chatty workers,” while only 4% said “personal communication tools such as mobile phones, email, social media and texting were a distraction.
  • Between 2010 and 2011 voluntary turnover went from 7% to 8.2% (17% increase), for high performers it went from 3.7% to 4.4% (19% increase). During that time average turnover costs increased from $1495 to $1610 per employee.
  • 44% of workers said they were unsatisfied with their job (Right Management)
  • Only 50% of households are prepared for retirement at age 65 but 85% will be ready by age 70.


“People don’t want to buy a ¼ inch drill, they want to drill a quarter-inch hole.”

~Theodore Leavitt~