September 2014 Recent Jury Verdicts and Settlements

A summary of recent jury verdicts and settlements.

AL—- Federal contractor, Hillshire Brands Co., settles sex discrimination and systemic hiring discrimination by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”). Following an investigation by OFCCP, it was determined Hillshire violated Executive Order 11246 by discriminating against 2,474 men who applied for semiskilled machine operator jobs at the company’s sandwich production plant in Florence, Alabama. These men were steered into dumper/stacker jobs, while women were steered into biscuit assembler jobs, despite the fact that both positions required the same qualifications. During a 20-month review period from 2009 to 2010, 98 percent of applicants selected for biscuit assembler positions were women, and 99 percent of applicants selected for dumper/stacker positions were men. Because there were fewer dumper/stacker positions available, the result was a significant hiring disparity for male applicants. Under the terms of the agreement, Hillshire will: 1) pay $330,000 in back wages, interest and benefits to the rejected male applicants; 2) make 73 job offers to the original class members as positions become available; and 3) review and revise its selection process and provide better training to its hiring managers to eliminate practices that result in gender stereotyping.

DC—- The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) found that Fort Myer Construction Corporation (“Fort Myer Construction”) violated Executive Order 11246 by failing to provide equal employment opportunities to employees and job applicants at 413 construction sites in the D.C. metropolitan area. The agreement resolves allegations that between Jan. 1 and Dec. 31, 2010, the company discriminated against 27 qualified women and 136 qualified African Americans who applied for jobs as laborers, and unfairly terminated 8 African American skilled laborers. It also resolves pay discrimination charges stemming from Fort Myer Construction’s practice of assigning equally qualified workers performing the same jobs to projects paying different hourly rates, some with fewer work hours. This resulted in lower wages for 44 African American and 156 Hispanic laborers.

Fort Myer Construction will pay $900,000 in back wages and interest to 371 women and minorities to settle charges of discrimination and harassment, and make job offers to 7 women and 30 African Americans as laborer positions become available. The company has also agreed to undertake extensive training and monitoring measures to ensure that all its employment practices fully comply with the laws enforced by OFCCP.

During their investigation, OFCCP compliance officers received more than 30 phone calls alerting them to charges of harassment, intimidation, threats and coercion at work. The agency discovered that supervisors at Fort Myer Construction used hostile and derogatory language toward African American and Hispanic employees, as well as a disabled veteran. The supervisors sexually harassed and tried to date female subordinates. African American women were locked out of restroom facilities and had feces left in their work trucks. A company vice president tried to interfere in OFCCP’s investigation by discouraging Hispanic employees from talking to agency inspectors conducting an onsite review. Even a female investigator from OFCCP was subjected to inappropriate sexual jokes by a superintendent while at a Fort Myer Construction work site.

OH—- GE Lighting LLC has agreed to settle allegations of hiring discrimination following an investigation by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”). Under the terms of the agreement, the federal contractor will pay $537,000 in back wages and interest to 102 women who were rejected for entry-level attendant positions at the company’s Bucyrus facility. GE Lighting will also extend job offers to at least five of the original class members as positions become available.

During a scheduled compliance review, OFCCP investigators found that GE Lighting used the WorkKeys test as part of its selection process, even though it was not properly supported by a validation study that satisfies the requirements of the “Uniform Guidelines on Employee Selection Procedures.” The agency concluded that GE Lighting’s hiring process systematically discriminated against female applicants, a violation of Executive Order 11246, which prohibits federal contractors from discriminating in employment on the basis of sex. GE Lighting has already ceased using the WorkKeys test, revised its selection process to ensure equal opportunity for all applicants and invited women to reapply under the revised hiring procedures. It has also extended one of the five job offers.

TX—- Shell Oil Co. and Motiva Enterprises LLC, which markets Shell gasoline and other products, have agreed to pay $4,470,764 in overtime back wages to 2,677 current and former chemical and refinery employees as a result of investigations by the U.S. Department of Labor that found violations of the Fair Labor Standards Act.

The department’s Wage and Hour Division conducted investigations at eight Shell and Motiva facilities in Alabama, California, Louisiana, Texas and Washington, which found that the companies violated FLSA overtime provisions. The findings revealed that those eight Shell Oil and Motiva refineries failed to pay workers for time spent attending mandatory pre-shift meetings. The companies required the workers to come to the meetings before the start of their 12-hour shift. Because the companies failed to consider time spent at mandatory pre-shift meetings as compensable, employees were not paid for all hours worked and did not receive all of the overtime pay of time and one-half their regular rate of pay for hours worked over 40 in a workweek. Additionally, the refineries did not keep accurate time records.

Shell and Motiva have signed settlement agreements that call for training of managers, payroll personnel and human resources personnel on the FLSA’s requirements. The training will stress the importance of requiring accurate recording and pay for all hours worked with emphasis on pre-and post-shift activities.

MD—- Federal contractor Westat Inc. has agreed to settle the U.S. Department of Labor, Office of Federal Contract Compliance Program’s (“OFCCP”) allegations that it failed to provide equal employment opportunities to 3,651 African American, Asian American, Hispanic and female job applicants at its Rockville headquarters and at field sites in California, Connecticut, Michigan, Mississippi, New York, North Carolina and Tennessee. Westat also allegedly failed to maintain and internally audit its own records.

During a scheduled compliance review, OFCCP investigators discovered that Westat used a selection process that systematically discriminated against 2,153 African American, 825 Asian American and 35 Hispanic job applicants for research analyst, programmer analyst, telephone data collector and field data collector positions, as well as 638 female applicants for survey process staff positions, between Oct. 1, 2008, and Sept. 30, 2009.

Under the terms of the settlement, Westat will pay a total of $1,500,000 in back wages and interest to 3,651 affected applicants and make 113 job offers to the original class members as positions become available. The company has also agreed to preserve and maintain all employment records, correct record-keeping violations, conduct internal audits, and perform outreach and positive recruitment activities.