Workers Adjustment and Retraining Notification Act (WARN)

The Workers Adjustment and Retraining Notification Act (“WARN”) became effective on February 4, 1989.  WARN requires employers to give employees notice when an employment change is advanced.  The Act calls for at least sixty (60) days notice to employees who will experience employment loss either because of a plant closing or because of a scheduled mass layoff.
 
 
An employee experiences employment loss in any one of the following three scenarios:

  1. An employment termination, other than a discharge for cause, voluntary departure, or retirement;
  2. A layoff exceeding six (6) months;
  3. A reduction in an employee’s hours of work of more than fifty (50) percent per month for a period of six (6) months.

 
WARN covers employers who have more than one hundred (100) employees.  Employees who work less than six (6) of the past twelve (12) months, as well as employees who work less than twenty (20) hours a week are not counted into this total.  Private for profit or non-profit, as well as public and quasi-public entities who operate in the commercial context are obligated under WARN to give their employees notice pending a plant closing or mass layoff.  Federal, State or local government entities are governed under WARN.  Hourly, salaried, managerial and supervisory employees are all entitled to the sixty (60) day notice.  Business partners however, are not entitled to the Act’s protections.
 
Employers of a temporary project are not required to give their employees notice prior to plant closings or mass layoffs.  Additionally, if the closing of the plant or mass layoff is the result of completion of a project, those workers are also not entitled to WARN’s protection.  The employees must have been hired with the understanding that their employment was conditional on the completion of the project.  An employer cannot label an ongoing project as temporary to avoid the requirements under the WARN act.    Additionally, striking employees are not entitled to notice when their actions lead to a lockout, which acts as an equivalent to a closing or mass layoff.  Non-striking employees who are adversely affected are entitled to notice.
 
If fifty (50) or more employees will experience employment loss (defined above) during any thirty (30) day period, then WARN requires employers to inform their employees.  Part time employees and new employees are not included in this employee total.  Advanced notice is also required when an employer has a mass layoff proposed.  If during any thirty (30) day period, five-hundred (500) or more employees, or forty-nine (49) to five-hundred (500) employees, which make up thirty-three (33) percent of the workforce are going to be laid off, then the employer must give notice.  The employee calculation for plant closings apply to mass layoffs as well (part time and new employees are not included in the total employee calculations).
 
If an employer plans to sell his business or is involved in the sale of the business, employees are still entitled to receive notice if a closing or mass layoff is proposed.  It is the seller of the business’ responsibility to give sixty (60) days notice to his employees up to and including the date/time of the sale if there is a risk of employment loss.  The buyer is responsible to provide employees with sixty (60) day notice of any proposed plant closing or mass layoff after the date/time of the sale.  Notice that the business has been sold is not required unless a closing or mass layoff is in the works.
 
The employer must give notice to either the chief elected officer of exclusive represented employees, the labor union, or to unrepresented workers who may reasonably be expected to experience employment loss.  Even employees who do not count towards employment totals, those workers who work less than twenty (20) hours a week or who have worked less than six (6) of the last twelve (12) months are still entitled to due notice.  Notice must also be given to the State dislocated worker unit, as well as the chief elected officer of the local government where the employment site is located.  There are, however, three exceptions to this requirement:

  1. If the employer is seeking new capital to stay open and advanced notice would ruin this opportunity, then notice is not required.  This exception only applies to plant closings and not mass layoffs.
  2. If a plant closing or mass layoff was not reasonably foreseeable at the time notice is required, then the notice requirement is excused.
  3. If a plant closing or mass layoff is the result of a natural disaster, such as a flood, earthquake, drought or storm; notice is not required.

If an employer does not provide sixty (60) days notice, and relies on one of the exceptions listed above, the employer must prove that one of the exceptions did in fact take place.
 
While notice is required sixty (60) days in advance, there is no requirement delineating what that form must be.  The notice must be in writing, but any reasonable method of delivery that will ensure receipt sixty (60) days prior to closing or mass layoff will suffice.  The notice must specify the reasons for a plant closing or mass layoff.  If either will occur more than fourteen (14) days after the date announced in the notice, then additional notice on behalf of the employer is required.
 
If you have been affected by a plant closing or mass layoff and your employer has not followed the requirements under the Worker Adjustment and Retraining Notification Act, contact Valli, Kane & Vagnini to learn more about your rights and legal options.
 

Dukes, et al. v. Wal-Mart Stores, Inc.

The Supreme Court recently rejected the certification of a class of plaintiffs, consisting of all of Wal-Mart’s current and former female employees, in a Title VII gender discrimination suit against the retail giant. The plaintiffs in this case allege that Wal-Mart, the largest employer in America with over one million employees, discriminates generally against women in pay, job promotions, and in administering disciplinary actions.
Commonality Requirement
In this decision, the Supreme Court set forth and clarifies the appropriate standard for seeking class certification under Federal Rule of Civil Procedure 23, and specifically, the “commonality” requirement. In order to certify a class, the plaintiffs must prove that there are questions of law or fact common to the class. In the Court’s words, there must be a “common contention” that “must be of such a nature that it is capable of classwide resolution- which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”
The plaintiffs can satisfy this burden through one of two main ways, the Court held. First, the plaintiffs can assert that the employer used a “biased testing procedure” to evaluate its employees or applicants; or second, that the “employer operated under… a general policy of discrimination.” In proving a general policy of discrimination, plaintiffs may use anecdotal evidence from enough members of the potential class or expert evidence. The Court cited a case that it decided in 1982 as the basis for these two methods.
In this case, however, the plaintiffs fell short. They argued that rather than there being a policy of blatant discrimination, there was a policy of providing wide latitude to store, district, and regional managers, and this policy led to rampant gender discrimination. The Court concluded that this policy of manager autonomy is insufficient to prove commonality, since there is so much potential variation in the behaviors of each manager. The Court did note, however, that such a policy of autonomy is better-suited to showing disparate impact in proving an individual discrimination claim under Title VII, just not for class certification.
Additionally, the plaintiffs in this case only offered accounts of discrimination from forty potential members of the class, where the total number of potential individuals in the class was 500,000. That would have amounted to each account of discrimination representing 12,500 other potential members of the class, where the Court noted that in previous cases, a one-to-eight ratio was found to be permissible. Moreover, the expert in this case failed to make any compelling causal link to the “culture” at Wal-Mart that allegedly led to discriminatory conduct, and could not, with any specificity, demonstrate the impact of that discriminatory “culture” on management decisions.
With regard to commonality, this decision will likely not have a great impact on victims of gender discrimination in the workplace, or even to class actions alleging the same. The Supreme Court looked at the facts of this case and applied it against a standard that it first articulated in 1982 and determined, unfortunately, that they were not sufficient to sustain a class action in this particular case.
Backpay
The Court also tackles the issue of whether or not cases in which the plaintiffs seek backpay qualify for class certification under Rule 23(b)(2). The Court, unfortunately, has held that they do not, writing that this rule cannot be used to certify claims for monetary relief where the monetary relief is not incidental to the injunctive or declaratory relief. Individualized relief, including backpay, the Court goes on to write, does not satisfy Rule 23(b)(2).
The Court cites possible issues that could arise with plaintiffs attempting to minimize the importance of monetary damages in order to become eligible for class certification under Rule 23(b)(2), and reasons that some plaintiffs may unwittingly forfeit their right to compensatory damages when the class is certified in this manner. Importantly, the Court looks to the language of Title VII and finds that if Wal-Mart proves that if it took an adverse employment action against an employee for reasons other than discrimination, the court cannot order it to pay backpay. The Court then looks to the Rules Enabling Act, which states that courts should not interpret Rule 23 in any way that would “abridge, enlarge or modify any substantive right,” and concludes that certifying the class under Rule 23(b)(2) would take away Wal-Mart’s right to litigate its statutory defenses to each individual claim. Essentially, defendants such as Wal-Mart get to raise their affirmative defenses for each employee individually, without any courts’ reliance on “Trial by Formula.”
Ultimately, this Supreme Court ruling leaves plaintiffs with the option to certify their class under Rule 23(b)(3), which only imposes a handful more burdens, many of which are easily overcome, and allows plaintiffs to opt-out of the class to pursue their claims individually.  On many levels, this finding further hinders the rights of workers and their ability to to effectuate necessary change in the unlawful corporate culture impacting many minorities and women in the workplace on a daily basis.

Retaliation – Employees Should Not Fear Reporting Discrimination –

Employees who have been discriminated or harassed against in the workplace should not be hesitant to report these claims.  Retaliation laws are in place to protect the employee from being harassed or targeted after they exercise their right to report discrimination.  When an employee reports discriminatory acts to the Equal Employment Opportunity Commission, their respective state equivalent, the Department of Labor, or even internally to their employer, retaliation laws are in place to stop the employer from taking adverse action against the wronged employee.
 
Retaliation laws protect against all forms of retaliation.  Retaliatory actions include, but are not limited to:
–          Disparate Hiring Practices
–          Unwarranted Firing
–          Pay Reductions
–          Change in Job Assignments
–          Promotion Discrepancies
–          Layoffs
–          Unwarranted Training Procedures
–          Denial of Fringe Benefits
–          Alteration of any other Term or Condition of Employment.
 
The Equal Employment Opportunity Commission is a federal agency in place to protect the rights of employees.  It is “an unlawful employment practice for an employer to discriminate against any of his employees…because the employee has opposed any practice made unlawful employment practice by Title VII.” 42 U.S.C. § 2000e-3(a).  EEOC Retaliation laws bar the employer from exercising any retaliatory acts, even retroactively, against an employee after they file an EEOC Charge of Discrimination.  Employees should not fear reporting discrimination because the EEOC is an agency to rectify these wrongs.
 
Most states have a functional state equivalent to the EEOC and this is another avenue for discriminated employees to use to remedy the harassment they have endured.  In New York specifically, New York Labor Law Article 20-C § 740 is in place to forbid an employer from taking retaliatory actions against an employee who reports discrimination in the work place.  New York employees have protection at both the Federal and State level when exercising their right to be free of discriminatory actions taken by their employer.  For employees working in New York City, they even have a third layer of protection under the New York City Human Rights Law.
 
Employees do not have to report acts of discrimination to one of these agencies in order to be afforded protection under these anti-retaliation laws.  An employee is safeguarded against retaliation in any form when they complain about discrimination or harassment directly to their employer by complaining to Human Resources, management or some equivalent.  It is vital, however, when complaining directly to your employer, that the aggrieved employee document their complaint of discrimination or harassment in some manner, whether through a formal document, email, or in the presence of a trusted witness.

 
For an employee to prove they have been retaliated against, they only need to show that the retaliation has produced “an injury or harm.” Burlington Northern & Sante Fe Ry. V. White, 548 U.S. 53, 67 (2006).  The injury or harm requirement must however stem from or convey a feeling or perception of discrimination.  Employees should not be weary of reporting acts of retaliation, but should exercise their right to be free of these acts.  Retaliation can also occur if someone has been negatively affected by your report of discrimination.  The EEOC’s Retaliation laws protect the rights of third–parties, even though they have not made claims of discrimination themselves. Thompson v. North American Stainless, LP (2011).  For a more detailed discussion on how third-parties are protected by the law, check back to see further blog discussion on our website.

Stuckey v. Yellow-Roadway Corporation

This action was instituted by various hourly employees to address nationwide discrimination by the Yellow-Roadway Corporation and their Unions. Instances of discrimination include the creation of a hostile work environment and open bigotry by employees who felt empowered by their union and supervisors who joined in on treating Black employees as less than White employees. The complaint also alleges that the Union discriminated against its Black members by failing to advocate for their rights in a manner equal to those of their White counterparts.
Downloads:

  1. YRC Race Discrimination Complaint

Turner Industries to face lawsuit for discrimination

Sara Kain of Valli Kane and Vagnini
Sara Kain of Valli Kane and Vagnini

BATON ROUGE, La (NBC33) – Civil rights leaders announced today that Baton Rouge-based Turner Industries is being sued for discrimination by several of its employees.
Turner Industries released a statement denying any discriminatory actions, but one employee tells a much different story.
“All the years of frustration and pain that I went through,” Yvonne Turner, former employee at Turner Industries, said a press conference held in Baton Rouge. “I’m tired and it’s time for me to speak up.”
For more on this story, watch NBC33 News at 10 p.m.
Original Article: https://www.nbc33tv.com/news/crimetracker/turner-industries-to-face-lawsuit-for-discrimination
By Brix Fowler – Reporter NBC

Tuesday, February 1, 2011

Workers sue Baton Rouge company for discrimination

James Vagnini of Valli Kane and Vagnini
James Vagnini of Valli Kane and Vagnini

By Tyana Williams – bio | email
BATON ROUGE, LA (WAFB) – O
ver 200 African-American employees at Turner Industries in Baton Rouge say for years, they’ve been discriminated against and harassed while on the job.
According to lawyers for the employees, documents show last March, the Equal Employment Opportunity Commission found Turner Industries violated the rights of several black workers. Attorneys say they filed suit because the company failed to address the EEOC’s findings.
For two years, Turner employees say they’ve been keeping track of what they call discrimination and harassment at work.  Tuesday at a rally, attorney James Vagnini showed racially-charged photos he says came from those employees who work in Paris, Texas to Lake Charles, Louisiana and here in Baton Rouge.
“I have a woman standing behind me that came back to her workplace, her slick suit had been stuffed with plastic and they hung it from a noose and sprayed her name across front of it,” said Vagnini.
Vagnini filed the lawsuit in Texas on behalf of 230 Turner employees from Texas and Louisiana.
The 300 page lawsuit alleges black employees witnessed hangman’s nooses at work, faced segregation in the workplace and during the 2008 presidential election were told they could have November 5 off to go vote, even though the election was November 4.
The suit also alleges some workers were bussed to another plant for work, where a white supervisor separated them by race.  The suit says the supervisor hired the white workers and told the black employees to leave.
“I work hard all my life and I can say I know I didn’t deserve that,” said Ethel Jones.  Jones says she was one of 13 black workers told to leave.
She says several times she was told if the racial graffiti in the bathrooms offended her, paint over it.
“Draw pictures of black ladies and say this is a black woman with your legs spread open,” Jones said.
Vagnini says Turner owes its black employees more than an apology.  But he says now the court will decide.
“It is the sentiment this company has toward minorities and it must change,” Vagnini said.
In a written statement, Turner Industries denies it has unlawfully harassed or discriminated against employees because of race.  They say some workers named in the lawsuit have never or no longer work for the company.
Turner Industries released the following statement:
Turner Industries denies that it has unlawfully harassed or discriminated against any employees because of their race or any other criteria.
Roland Toups, Turner Industries’ Chairman and CEO stated, “Make no mistake, Turner Industries stands for diversity and inclusion for all. Our record supports that.  We intend to defend our company and the jobs of our 15,000 employees who are employed in various divisions of the company.  We also assure our customers that our 50 years in the business and our commitments to them shall remain strong and true.”
This suit was filed following a lengthy campaign by plaintiffs’ attorneys from New York and Texas to encourage individuals to file claims against the company.   Some of the individuals named in the suit have never worked for Turner Industries.  Most are no longer employed with the company.  Furthermore, many of the claimants who had filed charges raised claims during periods in which they were not even employed with the company.   Many have also returned to work for Turner Industries several times.   Records show that relatively few actually reported complaints of discrimination or harassment to the company.
Toups continued: “We have asked every Turner Industries employee to stay focused on safely performing their jobs. We also have asked them to support the company by making sure that our workplace is compliant with the company’s equal employment opportunity and anti-harassment policies. If there is a problem, we want to know about it so that it can be addressed.”
Last year, Turner Industries addressed racial claims arising at its Paris, Texas pipe fabrication facility.  Most of the named plaintiffs in the current lawsuit never worked in Paris.
Turner Industries intends to aggressively defend the allegations in this suit as well as its record of providing excellent employment opportunities for residents nation-wide.  We will remain committed to providing excellent jobs and employment opportunities for all qualified applicants without regard to race.   That will never change.
Original Article: https://www.wafb.com/Global/story.asp?S=13951136

Houston activists condemn services firm

Officials at Turner Industries deny racial bias

By LINDSAY WISE
HOUSTON CHRONICLE
Jan. 31, 2011, 8:05PM

Several dozen activists rallied outside the Mickey Leland Federal Building in Houston on Monday to protest Turner Industries Group of Baton Rouge, a privately owned industrial services company that faces allegations of racial discrimination, retaliation and a hostile work environment.

The rally came on the heels of a lawsuit filed Sunday by more than 230 current and former employees.

The suit seeks economic damages for the workers’ emotional pain and anguish, as well injunctive relief that would require Turner to provide employment discrimination training for all workers, diversity training for all managers, and human resources representatives for all the company’s locations.

Turner has a plant in Pasadena, as well as facilities in Beaumont, Corpus Christi, and Paris, Texas; Port Allen, Sulphur and New Orleans, La.; and Decatur, Ala.

The 374-page complaint, filed in U.S. Court for the Eastern District of Texas in Marshall, details accusations that black employees were subjected to racial slurs and exposed to swastikas, drawings of nooses, racist jokes, Confederate flags and Aryan Brotherhood symbols, including “KKK” and lightning bolts, a symbol known to be used by the Ku Klux Klan.

Company’s response

In a statement released Monday, Turner denied that the company unlawfully harassed or discriminated against any employees because of race or any other criteria.

“Make no mistake, Turner Industries stands for diversity and inclusion for all,” Chairman and CEO Roland Toups said in the statement. “Our record supports that. We intend to defend our company and the jobs of our 15,000 employees who are employed in various divisions of the company.”

The statement said some of the individuals named in the suit never worked for Turner, most are no longer employed with the company, and many who filed charges raised claims during periods in which they were not employed with Turner.

“Many have also returned to work for Turner Industries several times,” the statement said. “Records show that relatively few actually reported complaints of discrimination or harassment to the company.”

One of the workers for the company, Nina Taylor, 47, says she found a noose in a gang box at the company’s Beaumont facility.

“The general foreman had a coworker of mine tell me to go clean it,” Taylor said. “After the shock wore off, I started taking pictures, and the general foreman runs up to me and we have a verbal altercation. … They wouldn’t let me leave, they wouldn’t let me go back to work. I felt like they held me hostage there.”

When she returned to work, she learned her co-workers knew she had filed a complaint. One white colleague warned her not to eat her lunch one day because someone had spit in her food.

“I would like Turner to be forced to enforce their rules,” Taylor said. “I mean, they have it written down on paper that no employee should be discriminated against, but no one actually enforces the rules.”

Plant lost EEOC ruling

Everyone involved in the noose incident is still employed with Turner, said James Vagnini, an attorney for Taylor and other workers.

Last year, the company settled with a handful of Paris employees after an investigation by Equal Employment Opportunity Commission determined that black workers at the plant faced racial harassment and discrimination.

The EEOC also concluded that black workers were denied promotions and disciplined more harshly than whites, and that managers retaliated against workers who complained.

lindsay.wise@chron.com

NAACP Launches Investigation

Black workers sue Turner Industries over harassment
  • By SKIP DESCANT
  • Advocate business writer
  • Published: Feb 2, 2011 – Page: 1B

Current, former and potential employees of Turner Industries alleging racial discrimination are seeking salary compensation, court costs and an overhaul of company policies to discourage workplace harassment, according to a federal discrimination lawsuit filed in Texas against Turner Industries LLC.
The lawsuit represents more than 230 black plaintiffs from Turner facilities in Lake Charles, Port Allen and Monroe, as well as locations in Paris, Texas, and Port Arthur, Texas, who say they have been routinely harassed with racial slurs, graffiti and overtly public displays of racial intolerance like hangmen’s nooses.
“The folks that stand behind me should be able to work in a peaceful environment without hangmen’s nooses, without swastikas and things of that nature,” said Earnest L. Johnson, president of the Louisiana chapter of the National Association for the Advancement of Colored People, at a news conference Tuesday from the rotunda of the Old State Capitol.
The event, which attracted about 20 current and former Turner employees from south Louisiana and Texas, as well as local civil rights leaders, was held to draw attention to the federal lawsuit. Turner Industries is a privately held Baton Rouge industrial services company.
The lawsuit claims Turner violated Title VII of the Civil Rights Act, which prohibits workplace discrimination. The 379-page lawsuit was filed Sunday in U.S. District Court, Northern District of Texas.
It follows a March Equal Employment Opportunity Commission investigation after eight Turner employees in Texas filed a complaint citing discriminatory treatment.
“I have considered all the evidence disclosed during the investigation and find that there is reasonable cause to believe that Title VII violations occurred,” wrote Michael Fetzer, Dallas District director of the EEOC.
Attempts at mediation with Turner Industries proved unsuccessful, said James Vagnini, an attorney for Valli Kane and Vagnini in Garden City, N.Y., who represented workers in the EEOC case and now in the lawsuit filed Sunday.
Turner officials denied any wrongdoing and said that name-calling and other incendiary displays are not tolerated.
“Make no mistake, Turner Industries stands for diversity and inclusion for all,” Roland Toups, Turner Industries’ chairman and chief executive officer, said in a statement. “Our record supports that. We intend to defend our company and the jobs of our 15,000 employees who are employed in various divisions of the company. We also assure our customers that our 50 years in the business and our commitments to them shall remain strong and true.”
Turner officials contend that a number of the claimants on the lawsuit have never worked for the company, while some of the others are no longer employed.
Records show that relatively few actually reported complaints of discrimination or harassment to the company, said John Fenner, general counsel for Turner.
“They want nothing to do with the complaints,” Vagnini said of Turner Industries. “They don’t believe in any of my clients and what they’re saying.”
Some of those claimants are people like Calvin Stewart, a Turner welder at the Port Allen facility, where he worked for nearly 20 years until being laid off in August.
Stewart, 48, said the reason given was “reduction of force.” However, he added complaints regarding racial slurs and other harassment were routinely ignored by management.
“Most of the time when you went to a supervisor, they treated you with a bad attitude, as a troublemaker,” Stewart said Tuesday.

EEOC Investigates Racial Tension At Texas Company

At least 100 African American employees working at Tuner Industries in Paris, Texas, did so under hostile conditions, which included graffiti, nooses and symbols of hate, the U.S. Equal Employment Opportunity Commission has found.
The investigation is one of the largest civil rights investigations in the state’s history.
The three-page EEOC document dated March 31 is a small victory for the NAACP, civil rights leaders and attorneys of the plaintiffs, reports stated.
According to documents, the plaintiffs photographed images of swastikas, Confederate flags and nooses on welders’ helmets, cell phones and toolboxes at the company’s facility.
Turner manufactures oil pipeline products.
An attorney for the plaintiffs, Sara Kane, said some African-American employees who complained about the conditions, and white employees standing up against the racism have been terminated for doing so.
According to some of the plaintiffs, discrimination got worse when President Obama was elected.
John Fenner, corporate general counsel for Turner Industries issued a statement saying he was disappointed in what the EEOC found. Fenner said the company has a zero tolerance policy. He reported Turner Industries conducted an investigation during which they found no evidence of discrimination or retaliation.
The findings will allow the plaintiffs to file a lawsuit should they choose to.

Source: all_headline_news Reporter: Hansen Sinclair
Location: Dallas, TX, United States Published: April 14, 2010 1:59 p.m. EST
Topics: Manufacturing And Engineering, Racism, Industrial Component, Labor, Social Issue, Labor Dispute, Economy, Business And Finance