On August 20, 2009, Lowe’s Home Improvement settled a sexual harassment and retaliation suit brought by the U.S. Equal Employment Opportunity Commission (EEOC) on behalf of three employees at its Longview, Washington store for $1.72 million. EEOC v. Lowe’s Home Improvement Warehouse Inc., W.D. Wash., No. 08-331 (consent decree approved Aug. 20, 2009).
Among the many allegations in the litigation, the EEOC alleged that the female employee was sexually assaulted by a store manager and the two male employees were harassed by managers and co-workers for allegedly being gay. The two also said they were not promoted and were ultimately discharged due to discrimination.
The three-year consent decree requires Lowe’s to provide comprehensive training to management, non-management, and human resources employees in all Washington and Oregon stores. Employees will be trained on what constitutes harassment and retaliation, and on their obligation not to harass or retaliate against any individual. Managers and supervisors will be trained on what constitutes harassment and retaliation, their obligation to provide a discrimination-free work environment, and their responsibilities if an employee complains about harassment or retaliation, or if they observe it. Human resources personnel will be trained on what constitutes harassment and retaliation, how to institute policies and practices to correct past discrimination and prevent future occurrences, informing complainants about the outcome of internal investigations, and the steps Lowe’s will take to assure a discrimination-free workplace in the future.
In addition to the comprehensive training and monetary relief, the consent decree requires Lowe’s to revise its sexual harassment and anti-retaliation policies, issue an anti-harassment statement to all employees in Washington and Oregon, revise its method for tracking employee complaints of harassment, and report regularly to the EEOC on harassment and retaliation complaints which arise in Washington and Oregon stores during the term of the decree.
On August 18, 2009, the U.S. Immigration and Customs Enforcement (ICE) announced that two corporate directors of Yamato Engine Specialists pleaded guilty to aiding and abetting the use of a false statement on federal immigration employment forms.
The two admitted they knew employees at the family-owned Bellingham company submitted false names and Social Security numbers on the I-9 forms used to verify workers’ right-to-work status. Shafique Amirali Dhanani, 46, and his sister, Shirin Dhanani Makalai, 52, will be sentenced to probation.
This is western Washington’s first successful prosecution of an employer for knowingly hiring undocumented workers, U.S. Attorney Jeffrey C. Sullivan said. “This case should put employers on notice that if they knowingly employ those who lack legal status, they face prosecution for federal felonies.”
Dhanani admitted that he knew of an employee who left Yamato after an ICE audit of its I-9 forms. The worker returned the following year and filled out a second I-9 with documents Dhanani admitted he knew were false. Makalai admitted that she knew of another employee who filled out an I-9 form in one name and five years later completed a second form in another name under the new date.
The company, which has not yet entered a plea, is expected to pay a significant fine under the directors’ guilty agreement, ICE said, adding that a total of 28 illegal aliens were found to be working for Yamato. All have been put on removal proceedings, according to ICE, but allowed to remain in the country as potential witnesses pending the conclusion of the case.
The federal I-9 form requires employers to examine documents providing information about newly hired workers’ identities and right to work in the United States. Employers are not required to be document experts, but do attest on the form that the documents provided by the workers appear to be genuine. ICE expects employers to use common sense in making that determination.
Washington Supreme Court Rejects Wrongful Discharge Claim
In Briggs v. Nova Services, No. 79615-7 (Aug. 27, 2009), the Washington Supreme Court rejected wrongful discharge and retaliation claims asserted by two employees who were fired after they complained about the management of their employer and by six other employees who walked off the job after the first two employees were fired.
The eight workers—six of them managers— were employed by Nova Services, a corporation that provides services to disabled persons. They wrote to the board of directors to complain about CEO Linda Brennan’s performance.
The board hired an attorney to investigate the complaints and he determined that Brennan had not engaged in any illegal conduct. He recommended that either she or two of the managers be terminated because personal animosity prevented their working effectively together.
The board hired a human resources consultant to mediate the situation between the CEO and the two managers, but mediation failed. Brennan fired the two managers for insubordination. The remaining six workers send a letter to the board saying they would quit if the terminated managers were not reinstated and Brennan was not fired, and demanding that the board contact them the following day.
The board did not respond to the employees’ second letter and the employees did not come to work. Brennan decided they had resigned and hired replacements. The employees sued, claiming their terminations were in violation of public policy because they had engaged in concerted activities protected under RCW 49.32.020. The trial court dismissed the suit before discovery, finding that Nova was entitled to judgment as a matter of law because the employees’ “concerns did not relate to a term or condition of employment.” The appeals court upheld the ruling.
Concerted activity “must relate to the ‘terms and conditions of employment,’ ‘collective bargaining’ or for ‘other mutual aid or protection,’” the Washington Supreme Court ruled. It includes things such as better wages, improved medical coverage, better treatment by supervisors, production quotas and work rules, the court explained. It “does not include ‘managerial decisions, which lie at the core of entrepreneurial control.’” Management rights “continue to include the hiring and firing of management, such as the executive director here.”
Because the record did “not present a genuine issue as to any material fact,” Nova was “entitled to a judgment as a matter of law,” the court ruled, affirming the appeals court decision.
Four justices disagreed. In the dissenters’ opinion, “concerted activity means ‘action in concert’ or simply acting together” for “mutual aid and protection,” which “includes listing grievances or complaints” and “walking off their jobs for . . . mutual aid and protection . . . in protest of working conditions.” And “working conditions” included, in this case, the employees’ “dissatisfaction with Brennan’s professional performance as executive director of Nova,” specifically allegations of lack of adequate supervision, failure to properly delegate authority, failure to hire needed staff, failure to accurately apply accrued sick leave, failure to communicate with employees, and failure to adequately manage finances. Moreover, the dissenters wrote, “Courts also have recognized that employees are protected in engaging in concerted activity for the purpose of seeking the reinstatement of a co-worker.”
It is important to note that although five supreme court justices (a majority of the court) agreed with the result in the Briggs case, only four justices agreed that the employees had not engaged in protected concerted activities. One justice’s opinion did not address the issue. Because the court split evenly on the question of whether the employees in Briggs were engaged in protected concerted activity, the law remains less than clear on that subject. The lesson for employers, thus, is that caution is appropriate, and advice of counsel should be sought before disciplining or discharging employees who have joined together to assert grievances of any nature.
