Benesch/AvatarFleet Webinar: Hiring Drivers & Employers’ Abilities to use Criminal Background Checks

EEOC Versus FMCSA:  No One Wins, But You Don’t Have to Lose.

Recently, the EEOC provided enforcement guidance regarding policies on hiring convicted felons. Benesch and AvatarFleet have teamed up to help you walk the fine line as the government sends the industry somewhat mixed messages.  After attending this webinar, you’ll better understand the latest rulings and how they affect your business.  Most importantly, you’ll learn specific strategies to overcome these divergent governmental perspectives so you can avoid expensive claims of discrimination.  Benesch is a leading authority on transportation law with 75 years of expertise in labor and employment.  AvatarFleet exists to make the world a safer place and provides the industry with best-practice solutions, solving the age-old driver problem.

Join Mark Gardner, CEO of Avatar Fleet and Mark Waterfill, Partner in Benesch’s Labor & Employment Practice Group as they discuss these issues.

Monday, November 11, 2013
11:00 a.m. – noon

Please contact Michael Montagna to register at or (216) 363-4196.

First Circuit Holds Military Members May Be Entitled to Discretionary Promotions upon their Return from Service

The First Circuit Court of Appeals held that an employer may have discriminated against an employee by not giving him a discretionary promotion upon his return from a military deployment in Rivera-Melendez v. Pfizer Pharm., LLC, No. 12-1023 (1st. Cir 2013).

Under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), employers must ensure employees that take a military leave of absence are reemployed to the position in which it is “reasonably certain” they would have been employed if the “continuous employment … had not been interrupted by such service.”  These requirements were clearly understood to mean that covered employees are entitled to automatic promotions and pay raises that would have been received during their leave; however, the recent First Circuit opinion illustrates that a careful analysis must be applied in the case of discretionary promotions as well.

Continue reading

What You Should Know: EEOC Clarifies Use of Background Checks

In order to avoid potential litigation, employers who rely on criminal background checks to screen out undesirable applicants should make sure they are tailored to the requirements of the job being filled, the chairwoman of the U.S. Equal Employment Opportunity Commission noted in a letter clarifying its policy. Continue reading

Sixth Circuit Affirms Skyline Chili’s Summary Judgment On Terminated Employee’s Age, Sex and Retaliation Claims Because Employee Failed to Establish That Employer’s Performance-Based Reason For Her Firing Was Mere Pretext

The U.S. Court of Appeals for the Sixth Circuit recently affirmed a summary judgment granted to Skyline Chili, Inc. on claims of age and sex discrimination, and retaliation, brought by a terminated employee.  Skyline showed that the employee’s termination was based on performance deficiencies, and the employee failed to establish that those alleged deficiencies were a mere pretext for a discriminatory firing.  Mary T. McKinley v. Skyline Chili, Inc., 6th Cir. No. 12-4064 (unpublished op., August 21, 2013). Continue reading

U.S. District Court Decision Against EEOC: Use of Criminal Background and Credit History Checks in Making Hiring Decisions

A U.S. District Court judge in Maryland has dismissed a lawsuit that accused a nationwide marketing company of using background checks to discriminate against minority and male job applicants after finding the Equal Employment Opportunity Commission (EEOC) relied on flawed data that contained a “mind-boggling number of errors.” Continue reading

Reporting Up the Ladder: 7th Circuit Finds that Supervisors May Have a Duty to Report Sexual Harassment Claims to Those Authorized to Act

Despite the existence of a written policy proscribing the proper procedures for reporting sexual harassment, employers may be liable under Title VII of the 1964 Civil Rights Act if an employee makes a report to another employee who is not designated in the policy, but who the employee reasonably expects to report the harassing behavior to the proper authority.  For instance, the 7th Circuit recently reversed summary judgment for an employer, Peri Formworks Systems, Inc., because the court found that a reasonable jury could conclude that a former employee, McKinley Lambert, gave sufficient notice of sexual harassment to trigger employer liability when he made complaints to two yard leads, even though the yard leads did not have the authority to hire, fire, or discipline employees.  Lambert v. Peri Formworks Systems, Inc., 7th Cir. No. 10-C-6789, U.S. App. LEXIS 1499 (July 24, 2013). Continue reading

Supreme Court Clarifies When an Employee is a Supervisor Under Title VII

In a 5-4 decision that represents a major victory for employers, the U.S. Supreme Court held that an employee must have the power to take tangible employment actions against another worker in order to be considered a supervisor for vicarious liability purposes under Title VII of the 1964 Civil Rights Act (“Title VII”).

The case, Vance v. Ball State University, concerned Maetta Vance, an African-American woman employed as a catering assistant by Ball State University. Vance alleged that another Ball State employee, Saundra Davis, had been harassing her. Specifically, it was alleged that Davis, a white woman, had been racially harassing and discriminating against Vance by intimidating her and “[giving] her a hard time at work.” Davis filed complaints with the Equal Employment Opportunity Commission (“EEOC”), and Ball State attempted to address the problem. Nevertheless, the intimidation and harassment continued, and Vance filed suit under Title VII in an attempt to hold the University liable for the harassment. Continue reading

Have You Audited Your Self-Funded Health Insurance Plan?

Michigan Court awards over $5 million in damages to employer who was the victim of fraud by its third party administrator. 

A federal district court in Michigan has just ruled that the sponsor of a self-funded health insurance plan may recover over $5 million against Blue Cross/Blue Shield of Michigan for hidden fees. In Hi-Lex v. BCBSM, Judge Victoria A. Roberts held that the third party administrator violated ERISA by devising a scheme to obtain additional compensation without the sponsor of the self-funded health insurance plan knowing about it. BCBSM was found to have engaged in self-dealing, which is prohibited by ERISA. BCBSM “violated its fiduciary duty… to disclose information to the plaintiffs about its compensation …” As a result, BCBSM was ordered to repay all of these fees, over $5 million, prejudgment interest and attorney fees. Continue reading

Employer Insurance Requirements Under the Affordable Care Act Postponed

The Obama administration announced July 2nd that it will postpone the mandatory compliance date for employers to provide health insurance under the Affordable Care Act (the “ACA”).

The ACA, a sweeping piece of health care reform legislation, provides a host of requirements related to health insurance. Significant to employers, the legislation’s “shared responsibility” mandate requires that those employing 50 or more “provide affordable health insurance that provides minimum value” to “full time employees” (defined as employees working 30 hours or more per week). The employer mandate was originally scheduled to go into effect on January 1, 2014. Continue reading