Alabama Employment Law Report

11TH CIRCUIT RULES IN FAVOR OF EMPLOYER IN USERRA CASE

Daniel Burnick — Tue, 09 Mar 2010 15:43:40 -0600

Sam Friedman, one of the firm's bright young associates, wrote the following summary on the case of Dees v. Hyundai Motor Manufacturing Alabama, LLC decided by the 11th Circuit recently. The court found in favor of Hyundai and against Dees on a USERRA claim.

Jerry Leon Dees sued his employer, Hyundai Motor Manufacturing Alabama, LLC, for employment discrimination under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). Dees claimed Hyundai discriminated against him and harassed him because of his membership in the National Guard, and he alleged that he was eventually fired because of his National Guard membership. The federal district court ruled in Hyundai's favor, and Dees appealed to the Eleventh Circuit Court of Appeals.

The USERRA provides that an employer cannot discriminate against an employee because of his or her military membership. To prove discrimination under the USERRA, an employee must show that his or her military membership was a motivating factor in the employer's adverse employment decision. An employer may rebut the employee by proving that legitimate reasons, standing alone, would have led to the same adverse employment action. Additionally, under the "cat's paw theory", an employer can be held liable for discrimination even if a party with no decision-making authority makes a discriminatory recommendation and the employer acts on that recommendation without conducting an independent investigation.

In reviewing Dees' appeal, the Eleventh Circuit held that the district court correctly ruled in favor of Hyundai on the employment discrimination claim. The court noted that Dees failed to present any evidence proving that his membership in the National Guard led to his termination. Hyundai knew of Dees' service when he was originally hired and never disciplined him for missing work for training. The court similarly rejected Dees' cat's paw theory argument.

The Eleventh Circuit also held that Dees did not have standing to bring a harassment claim. In order to establish standing, a plaintiff must show that (i) he or she suffered injury as a result of a violation of a legal right, (ii) the defendant's actions caused the injury, and (iii) a favorable outcome in court will remedy the injury. The court found that Dees did not have an available remedy because his employment had been terminated for non-discriminatory reasons.

Therefore, the Eleventh Circuit affirmed the district court's decision in favor of Hyundai.

Practice pointer. Any time an employee returns from military service, the safeguards of USERRA must be followed. If so, it is possible for an employer to obtain a favorable decision in the event an employee pursues a claim against it. However, if the safeguards are not followed, monetary liability, as well as bad publicity, may follow.

PRESIDENT OBAMA SIGNS COBRA EXTENSION

Daniel Burnick — Wed, 03 Mar 2010 15:43:58 -0600

On March 2, 2010, President Obama signed into law the Temporary Extension Act of 2010 which addresses the COBRA subsidy and extends the time employees may file for Federal Emergency Unemployment Compensation. Under COBRA, the new law extends coverage for those involuntarily terminated from March 1 through March 31, 2010, the eligibility period for the 15 month, 65 percent premium subsidy. It also permits employees to receive the subsidy if they initially lost their group coverage to to a reduction in work hours and then were terminated after the enactment of this bill. The law also extends the time period during which terminated employees may file for Federal Emergency Unemployment Compensation from February 28 to April 5, 2010, and extends the time period during which they may claim and be paid emergency unemployment compensation from July 31 to September 4, 2010.

Practice pointer. Congress is still considering legislation to extend these programs through 2010. Since these benefits were due to expire, and Congress could not agree on a longer term extension, this short term extension was passed so Congress can continue to explore a longer term extension.

VIOLENCE IN THE WORKPLACE, PART 3

Daniel Burnick — Sun, 28 Feb 2010 10:45:31 -0600

Last week, I was invited to speak to the Sylacauga Rotary Club. When asked about a topic, the decision was made to talk about violence in the workplace. This is a very serious and timely topic, and should be concern to all employers and employees. One area of workplace violence that is often overlooked is bullying. Bullying can be a problem that may start out small, but can escalate into a much bigger problem. WebMD published an article on February 22 entitled "Workplace bullying: How common is it?" The article focused on accusations in England over the treatment by Gordon Brown of his Downing Street staff. Workplace bullying includes arguments, rudeness, exclusion of co-workers and unacceptable criticisms. It may also include cyber-bullying: the use of social networking sites to intimidate, embarrass or otherwise attack co-workers. The Advisory, Conciliation and Arbitration Service defines bullying as "Offensive, intimidating, malicious or insulting behavior, involving an abuse or misuse-use of power through means intended to undermine, humiliate, denigrate or injure the recipient". Mind, a mental health charity, lists physical symptoms that can result from workplace bullying, including headaches, sleeplessness, stomach problems, constant tiredness, panic attacks, mood swings, depression and suicidal thoughts. Subjecting employees to these types of symptoms, over time, can lead to physical violence in the workplace.

Practice pointer. Once again, it is important for employers to have proper policies and procedures in place to identify, prevent or react to workplace violence. Training all staff, including supervisors is something that should be done on a regular basis.

ALABAMA SENATE OKS GUNS IN CAR AT WORK. At Sirote's recent seminar on workplace violence, one of the questions asked dealt with the possession of firearms in the workplace. The Alabama Senate has passed a bill, by a vote of 26-2, that would permit employees to keep legal firearms in their vehicles on company premises, so long as they are locked out of sight, such as in the glove compartment or trunk. Electric utilities are exempted under this bill. I will update the status of this bill as it moves through the legislature.

INDEPENDENT CONTRACTOR VS. EMPLOYEE: GOVERNMENT CRACKDOWN ON MISCLASSIFICATION

Daniel Burnick — Sun, 21 Feb 2010 12:46:45 -0600

The President. The Department of Labor. The IRS. There is a great deal of pressure being exerted on employers to properly classify workers as either employees or independent contractors. According to Inc. President Obama's 2011 budget includes funding for an additional 100 IRS employees to help crack down on the misclassification of workers as independent contractors. It is estimated that this will add an additional $7 billion in revenue over the next 10 years for the government. The IRS is also beginning a 3 year audit of 6,000 companies chosen by random, rather than issues with the company's returns. The use of independent contractors can save companies as much as 30% in costs since they don't have to pay for social security and medicare taxes, workers' compensation, unemployment compensation, health insurance, vacation or sick leave. Last week, USA Today ran an article entitled IRS, States crack down on independent worker status abuse.

The New York Times published an article on February 18 entitled "U.S. Cracks Down on 'Contractors' as a Tax Dodge". The story referred to a federal study that concluded that 3.4 million workers were illegally misclassified as independent contractors instead of employees. The attorney general from Ohio believes that there are 92,500 misclassified workers in Ohio alone, costing the state over $363 million in lost unemployment insurance taxes, workers' compensation premiums and income tax revenue. The article notes that the most frequently misclassified workers are "truck drivers, construction workers, home health aides and high-tech engineers." Misclassification of workers as independent contractors also prevents those contractors from receiving overtime if they would have been entitled to it if they were properly classified as non-exempt employees.

Finally, closer to home, a study in Tennessee found that 20% of construction workers in Tennessee were either misclassified as independent contractors or paid under the table.

Practice pointer. I routinely am involved in representing clients who misclassify employees, usually unintentionally. With the looming crackdown in misclassification by the federal government, now is a good time to review the classification of workers to make sure that they are being properly identified as either employees or independent contractors. Companies that are caught misclassifying employees as independent contractors face enormous financial penalties, including income tax, medicare and social security with holdings, and claims for overtime.

CURRENT EVENTS IN ALABMA: $2.7 MILLION HARASSMENT VERDICT, VIOLENCE IN THE WORKPLACE AND MORE

Daniel Burnick — Sat, 13 Feb 2010 12:46:58 -0600

Last Friday was a busy day in Alabama for employment issues. Perhaps the calendar was off by a day: it should have been Friday the 13th, not Friday the 12th.

First, the Birmingham News reported that a federal jury in Birmingham, after a 3 week trial, returned a verdict in the amount of $2.7 million against U.S. Security Associates, Inc, a security guard firm based in Georgia. According to the article, Jamie Marks sued USSA alleging sexual harassment when a district manager repeatedly propositioned her for sex and inappropriately touched her. Robert Gordon, writing for the Birmingham News, noted that "One occasion, Hargrove masturbated in front of Marks the lawsuit said." Marks complained, but was ignored, in part, because Hargrove was having an affair with Mark's immediate supervisor, who witnessed the exposure, but lied during the company's investigation. Interestingly, Hargrove remains employed with USSA.

Practice pointer. Once again, let me say that it is important to have policies and procedures in place, and to follow them!!! The jury found, as evidenced by the high verdict, serious violations of the law by the supervisor, and the failure of the company to properly investigate and remedy the situation: the supervisor is still employed.

On January 28th, I wrote a blog entry dealing with violence in the workplace. Tragedy struck in Alabama Friday when a female professor at the University of Alabama in Huntsville, who was just denied tenure, pulled a gun and killed 3 faculty members and wounded 2 faculty members and a staff member. The accused shooter is a 42 year old Harvard graduate, the mother of 4, married to a geneticist and researcher who also works at UAH, and apparantly accidently shot and killed her brother in 1986. The shooter and her husband were taken into custody. In watching the news reports, one student interviewed said that you hear about these situations around the country, but you never expect it to happen to you. Unfortunately, as we are again reminded, violence in the workplace does strike close to home. My firm, Sirote & Permutt, is holding a seminar this coming Wednesday, February 17 addressing violence in the workplace, If you are interested in attending, you can view the invitation here and make reservations to attend. The seminar will take place in Birmingham, but will be broadcast to our Huntsville and Mobile offices.

Practice pointer. Violence in the workplace is a constant threat, and must be dealt with seriously. It strikes close to home, and is unpredictable. Companies must prepare for these situations by having the appropriate policies and procedures in place, training the entire workforce, and be forever vigilant to guard against it.

Last November, I gave a presentation at our year end seminar addressing the H1N1 flu and pandemics in the workplace. According to the Center for Disease Control and Prevention, in an announcement made Friday, approximately 57 million Americans have contracted H1N1 since April, 2009. This is about 18 % of the U.S. population. Almost 12,000 have died, and about 260,000 have been hospitalized. Although the experts predicted otherwise, adults between 18 and 64 have been hit the hardest, accounting for 58% of the infections and hospitalizations and 76% of the deaths.

Practice pointer. Although the H1N1 pandemic may be over, other pandemics will hit in the future. When is unknown. In order to keep businesses operating during a pandemic, companies must be prepared with the appropriate plan to cover for absent employees, sick employees and perhaps the interruption of normal life (quarantines, disruption of the food supply, school closings, etc.) Now is the time to prepare by formulating proper procedures and implementing them with the workforce.

This past week, I was invited to speak to the Talladega County Bar Association and gave a presentation on Social Media, including the impact of social media in the workplace. Interestingly, one of the cases I often refer to in my presentations is a case out of North Carolina where a volunteer fireman was discharged for conduct unbecoming a fireman because his social media site made reference to him and his wife practicing the Wicca religion, and that his wife was bisexual. One of the attorneys in Talledega has a very similar situation, where an ex spouse allegedly posted on a social networking site that the other ex spouse practiced the Wicca religion and was bisexual. No, I can't make these things up. It is important to have a social media/networking policy in the workplace to protect the company, it's employees and to safeguard confidential and proprietary information.

11TH CIRCUIT FINDS FAILURE TO DISCLOSE TITLE VII LAWSUIT IN BANKRUPTCY PROCEEDINGS BARS CLAIM

Daniel Burnick — Tue, 09 Feb 2010 09:00:48 -0600

On February 5, the 11th Circuit decided the case of Robinson v. Tyson Foods. Robinson worked for Tyson Foods, and resigned in September, 2005 by a letter of resignation stating, in part, that she was subjected to "harassment, racial abuse and intimidation." In October, 2006, she brought a civil suit against Tyson under Title VII, and claimed compensatory, punitive and liquidated damages. In April, 2002, Robinson voluntarily dismissed her Chapter 13 bankruptcy cased because she could not make her payments, and filed a second Chapter 13 proceeding. The plan was confirmed in May, 2002, and the judge ordered, in part, that "the property of the estate shall not vest in the Debtor until a discharge is granted under Section 1328 or the case is dismissed". In May, 2007, one of Robinson's debtors moved to dismiss the bankruptcy plan because her payments were delinquent. Before a hearing on the motion, she became current on her payments. In July, 2007, her bankruptcy plan was completed, she repaid all her debts, and she received a full discharge from Bankruptcy.

Tyson took her deposition in September, 2007, and learned that she had not disclosed her suit against Tyson in the bankruptcy court. Tyson also learned that her husband died in 1997, and she had a workers' compensation claim against her husbands employer when she declared bankruptcy in April, 2002. That lawsuit was not disclosed either. The 11th Circuit upheld the trial courts decision dismissing Robinson's claim against Tyson, under the theory of judicial estoppel, which is designed to "prevent a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by the party in a previous preceding". Since full and honest disclosure in a bankruptcy proceeding is "critical" to the effective functioning of the system, and a debtor has a statutory duty to disclose all assets, or potential assets to the bankruptcy court, and Robinson failed to do so, she was prohibited from pursuing her claim against Tyson.

Practice pointer. This decision reinforces the need for individuals to be completely open and honest when they file for bankruptcy. If they fail to disclose an asset, or potential asset, such as a law suit, it may bar them from pursuing those claims not disclosed to the bankruptcy court. This logic also applies in many unemployment compensation appeals, where claimants' change the reason for termination from what they originally listed on their claim for unemployment, (for example, lack of work) to a claim under Title VII (for example, sexual harassment).

TENNESSEE JURY RETURNS $1.5 MILLION AWARD FOR WRONGFUL TERMINATION

Daniel Burnick — Fri, 05 Feb 2010 08:49:16 -0600

Last January, I published an entry addressing the Crawford v. Metropolitan Govt of Nashville decision issued by the Supreme Court. The Supreme Court held that an employee who responded to questions during an internal investigation is protected by the anti-retaliation provisions of Title VII. The Supreme Court remanded the case to the District Court in Nashville, and a trial was held 2 weeks ago. According to an article in the Chicago Tribune on January 25, Crawford was fired in 2003 after more than 30 years with the school district as the result of her cooperation in the investigation. "According to court documents, Crawford told investigators Hughes would ask to see her breasts, grab his crotch saying, "You know what's up", and on one occasion pulled her head to his crotch". Frazier, the HR officer, promised Crawford that she would be protected from retaliation. On the same day Frazier turned in her report on the allegations finding that no action would be taken against Hughes, Frazier sent a letter to the internal audit department informing them of concerns with the operation of Crawford's payroll department. Crawford has been unable to find another job since her termination in 2003, and she lost her house and car. She also claimed that her professional reputation had been damaged, due in part to an article in the local newspaper that quoted Metro officials alleging that she might have embezzled money from the department, although there was never a finding of embezzlement.

Practice pointer. Retaliation can be a very dangerous claim against employers, especially when the facts appear to be as bad as those set out in the Crawford case. HR professionals must recognize the consequences of retaliating against any employee who is involved in a Title VII investigation, whether they are the accused, the accuser, or a witness. Supervisory personnel must also be trained not to retaliate in these situations.

VIOLENCE IN THE WORKPLACE HITS THE NBA......AGAIN

Daniel Burnick — Thu, 28 Jan 2010 08:37:45 -0600

In 1994, Ron Artest of the Indiana Pacers charged into the stands during a NBA game being played in Detroit, and fought with players and fans. 9 different players were suspended for a total of 146 games, costing those players $10 million in salary. 5 players were charged with assault, and all 5 were found guilty. More recently, Gilbert Arenas and Javaris Crittenton, of the Washington Wizards, were suspended for the remainder of the NBA season as the result of a dispute over a card game on a team flight which escalated into guns being brought into the locker room by both players. Arenas will lose over $147,000 per game, while Crittenton will lose over $13,000 per game. Too often, we hear about disgruntled ex-employees, distraught spouses or ex-spouses, or others entering places of business, courts, schools, and even basketball arenas, armed with weapons, and "going postal", killing and injuring innocent people. Since the beginning of the year, we have heard about people getting killed in Kennesaw, Georgia and St. Louis. A total of 5 people lost their lives, and 8 were injured. The FBI estimates that approximately 1 million people are exposed to some form of workplace violence every year.

Violence in the workplace has no bounds, and can impact any workplace, at any time. The Houston Chronicle recently published an article entitled "Employers can minimize risk of workplace violence.". The article listed 8 steps that can be taken to prevent or minimize the risk of workplace violence. These steps are: Accept reality. Use effective pre-employment documents and conduct background checks. Establish policies on workplace violence. Conduct substance abuse testing. Develop procedures for investigating threats. Training supervisors and employees. Implement an employee assistance program. Audit and improve security measures.

In addition to the tragic loss of life and devastating injuries, violence in the workplace can result in severe financial consequences to companies when it occurs. Employees being killed or injured. Ongoing counseling. Lost work time and decreased productivity. Bad publicity, often nationally. Workers' compensation lawsuits. Claims for negligent hiring/retention/supervision.

Sirote & Permutt is hosting a seminar on Workplace Violence on Wednesday, February 17th in our Birmingham office, and it will be simulcast to our Huntsville and Mobile offices. If you are interested in attending, please follow this link for more information and RSVP details: seminar

DEPARTMENT OF LABOR ISSUES UPDATED MODEL COBRA NOTICES

Daniel Burnick — Thu, 21 Jan 2010 13:39:22 -0600

The Department of Labor released 3 model notice packages to help group health plans and employers provide notice on the availability of the extension of COBRA continuation coverage under the American Recovery and Reinvestment Act. The American Recovery and Reinvestment Act was amended by the Department of Defense Appropriations Act of 2010 and extended the eligibility period for 2 months and the duration from 9 to 15 months. Eligible individuals pay only 35% of their COBRA premiums, and the remaining 65 percent is reimbursed to the employer through a tax credit. According to Phyllis C. Borzi, assistant secretary of the Labor Department's Employee Benefits Security Administration, "Our action today gives workers and their families useful information to keep important health benefit coverage during these challenging economic times. We also are making it easy for employers and plans to meet their obligations to provide the notices". The Department of Labor will be holding a free webcast on January 22, from 1 to 3 p.m (EST) to help employers, plan administrators and service providers comply with the notice requirements. You can register on line at www.dol.gov/cobra or call Sandra Lynch at 202-693-8671.

11th CIRCUIT FINDS ADA PROHIBITION AGAINST IMPROPER PRE-OFFER MEDICAL INQUIRIES CREATES A CAUSE OF ACTION EVEN IF PLAINTIFF IS NOT DISABLED

Daniel Burnick — Wed, 13 Jan 2010 09:40:21 -0600

This week, in Harrison v. Benchmark Electronics Huntsville, Inc., the 11th Circuit reversed the trial court's summary judgment in favor of Benchmark (BEHI), and remanded the case for a jury trial. Harrison was employed by Aerotek, a company that places temporary workers at BEHI. He worked as a "debug tech", dealing with electronic boards. Harrison suffered from epilepsy (since the age of 2) and took barbiturates to control his condition. BEHI had a practice of hiring temporary workers as permanent employees if a supervisor believed that they would meet BEHI's needs. Harrison submitted an application and took a pre-offer drug test, that was positive for barbiturates. Although the testimony was in dispute, the evidence most favorable to Harrison indicates that his supervisor, Anthony, found out about the positive drug test and confronted Harrison about it. Harrison provided a valid prescription, and Anthony called the MRO and passed the phone to Harrison and listened in as he answered questions from the MRO, including the fact that he took barbiturates due to his epilepsy. After this conversation was overheard by Anthony, Anthony told HR not to prepare an offer letter for Harrison. Anthony also advised Aerotek not to return Harrison to BEHI, and Aerotek complied, telling Harrison he had a performance and attitude problem and had been accused of threatening Anthony. Harrison was terminated by Aerotek.

Harrison filed a charge with EEOC, and the EEOC determined that he did not have a disability and thus did not investigate the improper medical inquiry claim. A right to sue letter was issued to Harrison, and he filed his suit. The court first examined whether Harrison, a "non-disabled individual", can state a private cause of action for a prohibited medical inquiry in violation of Section 12112(d). The court found that such a cause of action exists. The court further found that an employer may conduct follow-up questioning in response to a positive drug test, but these questions are limited by Section 12112(d)(2), which prohibits disability-related inquiries. "A reasonable jury could infer that Anthony's presence in the room was an intentional attempt likely to elicit information about a disability in violation of the ADA's prohibition against pre-employment medical inquiries".

Practice pointers. Although this case was decided under the ADA prior to the 2008 amendments, the logic is still applicable. Employers must limit their pre-offer inquiries, even with a positive drug test, to non-disability related questions. Of course, this is very difficult to do. Additionally, as I have often written, it is important to train supervisors as to what they can and cannot do in relation to the ADA (as well as other employment laws). The timing of Harrison's termination is certainly suspect.

EEOC RELEASES 2009 STATISTICS: OVER 93,000 CLAIMS FILED

Daniel Burnick — Thu, 07 Jan 2010 08:50:28 -0600

The EEOC released fiscal year 2009 statistics this week: although the number of claims was down 2% from 2008's record level, 2009 had the second highest number of complaints ever filed with the EEOC. According to the New York Times, disability claims rose by 10% to 21,451. This is most likely due to the passage of the ADA Amendments Act of 2008, which expanded the coverage of the ADA. The most frequently filed claims were for race, sex and retaliation. National origin claims rose by about 5%, while religious claims rose by less than 1%. Stuart Ishimaru, acting chair of the EEOC, was quoted by the New York Times as saying that equal employment opportunity "remains elusive for far too many workers", while urging employers to end discrimination at work.

Practice pointer. I anticipate that EEOC claims will remain relatively constant in 2010, and may even increase, based on several factors, including the state of the economy, additional funding for the EEOC, and increased awareness within the workforce of changes in the law and the ability to file claims with the EEOC.

ASKING THE WRONG QUESTIONS CAN LEAD TO A LAWSUIT

Daniel Burnick — Wed, 06 Jan 2010 10:09:25 -0600

Last week, the Miami Herald published a story written by Diane Stafford entitled "Ready to hire? Don't ask wrong questions". The story, referring to an article in The HR Specialist newsletter, listed a number of questions that may be asked during an interview that may be viewed as discriminatory. Some of the questions listed are:

Are you married? Divorced?

Do you have children? Do you plan to start a family?

Do you rent or own your home?

What church do you attend?

Do you have a disability or illness?

As Ms. Stafford points out, "Some of these questions might seem laughable. Some might seem logically designed to figure out how responsible and worthy the applicant might be. But the threat of lawsuits prompts employers to tread carefully in personal probing."

All of the above brings to light the use of the internet to conduct background investigations on potential employees (and even current employees). Sources for internet background checks include search engines such as Google, social networking sites such as Facebook and Myspace, high school or college web sites, and even corporate web sites where the applicant worked prior to the application for a new job. Sites that can be checked also include news sources, such as newspaper or television websites, public records, such as assets, lawsuits, bankruptcy and home ownership, and the websites of religious institutions.

While many HR professionals will not ask questions such as those set out above, many will not hesitate to use the internet to conduct background checks. They do so without realizing that they may get answers to questions that they otherwise could not or should not ask in the interview process. One may be able to determine sex, race, age, family status, religious affiliation and even disabilities by performing internet research.

Practice pointer. When conducting internet background checks for potential employees, HR professionals need to be careful where they look and what they do with the information they discover if the information can form the basis for a claim of discrimination if the applicant is not hired. Using the internet to conduct background checks may lead to claims of discrimination when an applicant is not hired.

11th CIRCUIT ADDRESSES SAME SEX HARASSMENT CASE

Daniel Burnick — Wed, 30 Dec 2009 09:48:02 -0600

In Corbitt et al. v. Home Depot USA Inc., the 11th Circuit Court of Appeals reversed, in part, the District Court for the Southern District of Alabama's decision dismissing claims for sexual harassment and retaliation in violation of Title VII. Corbitt and Raya were store managers for the Home Depot in Mobile and Pensacola. They claimed that the regional human resources manager, Lenny Cavaluzzi, sexually harassed both of them for a period of 9 months. Cavaluzzi allegedly had multiple personal telephone conversations with the plaintiffs, massaged their necks and shoulders at a corporate meeting, played with their hair and hugged them on numerous occasions. Plaintiff's complained to various supervisors, but the conduct did not stop. The conduct only stopped after a supervisor used a Home Depot hotline to report Cavaluzzi. Both plaintiff's were fired a less than a month later. The trial court granted summary judgment in favor of Home Depot on all claims that were made by the plaintiffs. In affirming summary on plaintiff's claim for harassment, the Court, in distinguishing sexual harassment from flirtation, held that "Flirtation is part of ordinary socializing in the workplace and should not be mistaken for discriminatory conditions of employment". The Court reversed the lower courts finding that Home Depot did not retaliate against them by firing them, holding that sufficient evidence was presented that Cavaluzzi and another supervisor influenced the investigation in a way to have the plaintiff's terminated. The Court rejected any suggestion that the fact that the touchings were same-sex made them somehow more severe

Practice pointer. Same sex harassment (as well as female on male harassment) occurs in the workplace and must be treated as seriously as traditional male on female harassment allegations. Investigations must be done in a prompt, thorough and complete manner, and appropriate disciplinary actions taken. As society continues to evolve, I anticipate more of these cases to reach the courts.

FIREFIGHTERS IN NEW HAVEN CONTINUE THEIR BATTLE

Daniel Burnick — Wed, 23 Dec 2009 09:02:16 -0600

The case of Ricci v. Destafano continues to make the news. I have reported on this case in several blog entries, and the most recent activity involves the white and Hispanic firefighters filing papers to pursue their claim for back pay, interest and attorney fees. This case started in 2003 when the city refused to promote the 14 white and Hispanic firefighters: even though the test they took was race neutral, the city felt the results discriminated against black firefighters since none of the black firefighters who took the test scored high enough to get promoted. The Supreme Court, in June, ruled in favor of the white and Hispanic plaintiffs, finding that New Haven violated their civil rights by disregarding the test results. Recently, the plaintiffs received their promotions, and the black firefighters filed suit claiming they were discriminated against. Now, the attorney for the plaintiffs is pursuing claims for back pay, interest and attorney fees. According to theAP, Karen Torre, the attorney for the plaintiffs, they were subject to "the humiliation and economic hardship of prolonged career stagnancy in a rancorous atmosphere fostered by raw racial divides." I will continue to keep you posted as this case progresses.

Also in the news, President Obama signed into law the 2009-2010 spending bill for the Department of Defense, which includes a provision prohibiting most military contractors from enforcing mandatory arbitration provisions in their employment contracts. The provision prohibiting arbitration came about as the result of a female employer of a defense contractor, working in Iraq, who claimed she had been raped by co-workers, and the employer attempted to enforce the arbitration provision in her employment contract. In 6 months, this restriction will also apply to subcontractors.

Finally, on the overtime front, the New York Times reported this week that a lawsuit filed on behalf of 27 Mexican farm workers in Mississippi for overtime has been settled. The employees were working under the federal H-2 Visa program, and claimed they were not paid for hours worked in excess of 40 hours a week. The amount of the settlement was not disclosed.

I hope all of you have a Joyous Holiday Season and a Happy New Year.

CONGRESS APPROVES $23 MILLION TO EEOC TO HELP RESOLVE BACKLOG OF CASES

Daniel Burnick — Fri, 18 Dec 2009 15:26:42 -0600

Congress recently approved funding the EEOC with $23 million to help reduce the backlog of cases currently pending with the agency, some for as long as 3 years. According to Ethisphere, staff levels at the EEOC have dropped by approximately 25% over the last several years. Last year, the EEOC saw a 35% increase in backlogged cases. There are currently tens of thousands of backlogged cases pending with the EEOC. This is consistent with my November 11, 2009 blog entry indicating that the acting director of the EEOC reported at the annual meeting of the Labor and Employment section of the American Bar Association that they were hiring 250 new employees.

Practice pointer. As the new employees come on board for the EEOC, expect both an increase in the disposition of backlogged cases, as well as more aggressive enforcement of the various laws that the EEOC is responsible for.

U.S. SUPREME COURT TO HEAR APPEAL ON PRIVACY OF TEXT MESSAGES

Daniel Burnick — Mon, 14 Dec 2009 15:36:45 -0600

On Monday, December 14, the U.S. Supreme Court agreed to hear arguments in a case from the 9th Circuit (which includes California) to address whether employees of a governmental agency have a constitutional right to privacy in their text messages, sent and received on text pagers provided by the city of Ontario. The Los Angeles Times reported that police officers for Ontario were issued text pagers and advised that there was a limit of 25,000 characters a month, and any text over that limit would have to be paid for by the individual officers. It was understood by the officers that some messages would be personal in nature and not related to their police work. When the police chief learned that some officers were regularly exceeding the 25,000 character limit, he asked for an audit. Arch Wireless, which was the service provider, sent transcripts of the text messages to the chief, and the chief determined that the officer who filed the suit, Quon, had sent numerous personal messages, including to his girlfriend, who was also an officer, and they were sexually explicit. Both the city and the wireless provider were sued by Quon and other officers after they learned that their text messages were read by the chief. The trial court dismissed their suit, but the 9th Circuit overturned the ruling, finding that the reading of the messages was an "unreasonable search" prohibited by the 4th Amendment, and that Arch Wireless violated the Electronic Communications Privacy Act of 1986 by providing the contents of the text messages to the city.

Practice pointer. The Supreme Court's decision in this matter will help define the parameters of employee's privacy in the workplace. Even though this case involves a governmental agency, it ramifications will most likely impact the private workplace as well.

RANDOM THOUGHTS ON EMPLOYMENT LAW ON A COLD FRIDAY MORNING

Daniel Burnick — Fri, 11 Dec 2009 06:00:00 -0600

A number of issues continue to arise in the employment context. I expect you will be seeing more of these in 2010. They include the following:

Overtime. A California court preliminarily approved a $12.8 million settlement involving 650 potential class members claiming overtime. According to Law.com, Lynn Farris ""who is lead counsel in a similar case against FedEx Ground in the Northern District of Indiana, said companies considering whether to classify people as independent contractors "are likely to take this settlement as further indication that that's a risky business choice.""

City of New Haven. I have previously written about the City of New Haven fire department case, Ricci v. Destafano. The City of New Haven has promoted the 10 firefighters (white and Hispanic)based on a 2003 test and the Supreme Court's decision. Now, an attorney for New Haven's black firefighters is quoted by the AP as saying that "the fight is not over because the black firefighters were not heard." I cannot even imagine the amount of legal fees incurred in taking the case to the Supreme Court and now it will have to be fought all over again by the city.

Jury Duty. Since I just received my own notice to appear for jury service the first week in January, I found the following case interesting. In Florida, a supervisor for a security guard company was awarded $150,000 by a jury who found that she was wrongfully terminated after serving on a jury, not being paid $400 for the first 3 days she missed from work(pursuant to county law) and the judge gave the plaintiff a copy of the law protecting jurors and a letter vouching for her jury service. The jury awarded $30,000 for lost wages emotional distress and $120,000 in punitive damages.

Cool website. Ebosswatch.com has published it's Worst Bosses of 2009 list. Included on the list is Mike Swindle, who, while working at Hyundai Motor Manufacturing Company in Montgomery, was found to have harassed a female subordinate, resulting in a verdict in excess of $5 million. I wrote about this case in my blog on May 4, 2009.

IRS LOWERS STANDARD MILEAGE RATES

Daniel Burnick — Fri, 04 Dec 2009 13:28:53 -0600

On December 3, the IRS announced that it was lowering the standard mileage rates for 2010. Citing lower transportation costs, the new rates, effective January 1, 2010 are as follows:

50 cents per mile for business-related use (down from 55 cents per mile in 2009)

16.5 cents per mile for medical or relocation -related purposes (down from 24 cents in 2009)

14 cents per mile for use to support a charity (unchanged from 2009).

WAL-MART SETTLES OVERTIME CLASS ACTION FOR $40 MILLION

Daniel Burnick — Fri, 04 Dec 2009 10:02:28 -0600

Wal-Mart agreed to settle a class action suit by as many as 87,000 current and former associates in Massachusetts for $40 million. The suit, filed in 2001, alleged that Wal-Mart refused to pay overtime, denied rest and meal breaks, and changed time cards. Each class member will receive between $400 and $2,500. This settlement comes on the heels of Wal-Mart agreeing to settle 63 other state and federal class actions suits for up to $640 million.

Practice pointer. As the world's largest retailer, Wal-Mart's settlement numbers are extremely large. However, as I have discussed before, there are numerous lawsuits being filed weekly in Alabama against much smaller companies claiming overtime is due to employees. I am involved in a number of these cases, and they are worrisome to small business's because of the time it takes to gather information, the potential for liquidated damages, and the fact that plaintiff's are entitled to attorney's fees if they are successful. I would strongly urge all companies to audit how they classify their employees to make sure they are in compliance with wage and hour laws.

ALABAMA EMPLOYMENT LAW REPORT NAMED A TOP 100 EMPLOYMENT LAW BLOG

Daniel Burnick — Fri, 20 Nov 2009 11:56:10 -0600

The Delaware Employment Law Blog recently updated its list of the Top 100 Employment Law blogs. I am glad to announce that the Alabama Employment Law Report is part of this list. The top 100 list is a great source of information for the newest updates on what is happening in employment law around the country.

On another note, I will be on vacation next week, with little or no access to email or voicemail. As such, I will not be publishing any entries next week. I wish all of you a Happy Thanksgiving as we reflect on and give thanks for all the good things that are part of our lives, family, friends, co-workers and other things that are so important to each of us.