Koch Foods of Mississippi, LLC a poultry processing plant just settled two discrimination suits against it. Unfortunately, this isn’t the first employment discrimination case and it won’t be the last. However I believe this case is more than that. First there are migrant workers complaining of abuse. There are women complaining of abuse and that probably doesn’t even scratch the surface. The only positive I see here is that there is a lot that the rest of us can learn from this employer. (If you’ve read any of my previous posts, you know that that’s one of my objectives: to get some take-aways for all of you who don’t want to be “that” employer.) There seem to be so many things wrong with how this employer has allegedly been treating its employees that I almost don’t know where to start. So I guess the only thing to do is just get right into it, so read on…
OK, here goes: Koch Foods just agreed, after 8 years of litigation to a $3.75 million settlement of allegations that fall into the category of sexual and national origin discrimination and harassment. They also agreed to training and setting up a 24-hour hotline for reporting abuse and discrimination in English and Spanish. Since the EEOC was involved in one of the cases, Koch will be subject to reporting and monitoring requirements for three years. That does not begin to describe the horrific abuses, though.
Here are just some of the allegations: According to the EEOC, between 2004 and 2008, Koch Foods allowed or maintained an environment hostile to Hispanic female employees, which involved the same supervisor sexually harassing them. The supervisor allegedly made unwanted physical contact such as approaching them from behind while they were working and physically groping and rubbing their bodies. The EEOC also alleged that other Hispanic women were victims of attempted sexual assault, and that employees were warned that they would be subject to reprisal if they complained. Those who did protest the conduct, were subjected to escalated and more frequent physical and/or sexual assaults from their supervisor, and some were fired.
There’s more. Allegedly, many of the migrant Hispanic employees were charged money for using the bathroom, taking leave or requesting job transfers. Oh, and as you might have suspected, many of these workers were undocumented aliens.
How did Koch Foods respond? To this day, Koch, even in the settlement does not acknowledge any of the working conditions or any of the allegations, except to say that they were “contrived and fabricated as part of a coordinated effort to obtain work authorizations through U visas”, though they claim that they have “sought to hire only authorized workers,”. In fact, Koch attempted through court motions during the lawsuit to get discovery of information contained in their U-Visa applications. (For those who don’t know a U-Visa is a United States nonimmigrant visa which is set aside for victims of crimes -and their immediate family members-who have suffered substantial mental or physical abuse and are willing to assist law enforcement and government officials in the investigation or prosecution of the criminal activity.)
You probably don’t need me to tell you there are a number of takeaways here:
- First: the anti-discrimination and wage and hour and safety laws’ protections extend to migrant workers — even those who may be illegal aliens. It’s not OK to engage in harassing, discriminatory or abusive treatment toward anyone. Illegal actions do not become legal just because the target may be an illegal alien;
- Second: even if the discrimination and harassment allegations are found to be untrue, any harassments, firings or other adverse employment actions against those who complained are enough to support a separate claim of retaliation. Retaliation is also illegal under Title VII of the Civil Rights Act and state anti-discrimination laws. If you take adverse action against an employee who has complained of discrimination or other misconduct, make sure you really have legitimate, non-retaliatory reasons for doing so, along with supporting documentation — or refrain from the contemplated action.
- Third: Charging employees for bathroom breaks, transfers or leave requests is wage theft. That specific issue does not appear to have been raised here (and the EEOC doesn’t enforce those types of claims). An employer charged with wage theft can end up having to pay the withheld wages, plus liquidated damages in the same amount, plus the employees’ attorneys’ fees. I doubt you need me to tell you how that can add up to significant dollars. Hopefully none of you do anything like this. Many states have laws as to what wage deductions are and are not allowable. If you do make any deductions beyond tax withholdings, check to make sure that you are in fact allowed to do so;
- Fourth: Employers have a duty to provide employees with a safe workplace. To the extent that Koch knew or should have known about the supervisor’s conduct and that of all others perpetrating any similar abuses and failed or refused to stop it, Koch is lucky that it did not face liability on that issue alone. What are your safety policies and procedures, and have you ensured that your managers and employees are in compliance? When was the last time you reviewed your track record on safety?
- Fifth: Koch had a responsibility to ensure that its workers were eligible to work in the United States. All employers do. One wonders what its process was for doing that — or if it even had one. Koch could be audited and shut down by ICE just for that. If you haven’t done a check-up of your I-9’s and everything connected with them, now’s a great time to do it.
As you can see, this case is chock full of lessons for employers. Koch is learning them the hard way, but you don’t have to. OK, enough said.
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