Alabama Employment Law Report

EEOC Announces Private Sector Bias Charges Hit All-Time High

Daniel Burnick — Fri, 27 Jan 2012 09:04:32 -0600

Earlier this week, the EEOC issued a press release emphasizing that:

1. Private sector bias charges hit an all-time high in FY 2011. A total of 99,947 charges of employment discrimination were filed in 2011. Retaliation allegations totaled 37,334, Race discrimination charges tototaled 35,395, Disability discrimination charges totaled 25,742 and Age discrimination totaled 23,465. In the first full year of the Genetic Information Nondiscrimination Act (GINA), 245 charges were filed.

2. A record amount of money was recovered in FY 2011. The EEOC recovered $455,600,000 in monetary relief through the administrative program and litigation. This is $51,000,000 more than FY 2010. The EEOC filed more than 300 lawsuits , and litigation efforts resulted in $91,000,000 of relief. ADA claims produced the largest increase in monetary relief of all the statutes, with $103,400,000. This was a 35.9% increase from FYI 2010.

3. The pending inventory of charges was reduced for the first time in 10 years. In FYI 2011, the EEOC resolved 112,499 charges, leaving an inventory of 78,136 of pending charges.

Practice pointer. Employers must continue to educate their workforce as to the employment laws that apply, and the consequences of violating them. There seems to be more publicity about EEOC activities, and I anticipate this year will continue to show a steady, if not greater, number of charges being filed with the EEOC. Employers must take any charge seriously, and respond in an appropriate manner, which may include involving legal counsel. For those who remember Hill Street Blues, as Sgt Esterhaus would say in every show, "Hey, let's be careful out there".

More Unintended Consequences of HB 56

Daniel Burnick — Wed, 25 Jan 2012 13:41:57 -0600

The Atlanta Journal Constitution reported today that a football recruit will not be attending the University of Georgia. Chester Brown, a 6'5" 340 pound offensive lineman is the son of Samoan immigrants. Although his mother insists that he was born in the United States, which would make him a citizen, it appears as if Brown is not able to provide documentation proving where he was born. The Georgia Board of Regents adopted a policy in October, 2010 which states that an undocumented student cannot take the place of an "otherwise academically qualified Georgia resident who has been turned away because of capacity constraints". This policy was adopted after a Kennesaw State student was arrested for a minor traffic incident, and it was discovered that she was an undocumented Georgia resident, but had been paying in-state tuition. What would happen if this occurred in Alabama?

As I have written in the past, employers with state or other public entity contracts are required to use E-Verify. I have spoken with a number of such employers, and they are being provided paperwork by the state, counties and cities that needs to be completed before the contract can be entered into, no matter how big or small the contract amount. This paperwork includes "Affidavit of Alabama Immigration Law Compliance by a Contractor or Grantee" and an "Affidavit of Alabama Immigration Law Compliance by a Subcontractor or Grantee". Some entities are requiring that the employer provide a copy of the Memorandum of Understanding concerning the use of E-Verify.

Social media update. For those of you in north Alabama, I will be presenting a talk on February 29 on the impact of Social Media in the workplace. The seminar, put on be Sterling Education Services, Inc. will be at the Marriott Huntsville. For more information or to register for this seminar, visit the Sterling Website.

U.S. Supreme Court Issues Unanimous Decision in Favor of Church

Daniel Burnick — Thu, 12 Jan 2012 12:53:39 -0600

Cheryl Perich was a teacher at the Hosanna-Tabor Church school in Michigan. She taught mostly secular subjects, but also taught one 45 minute religious class and attended chapel with her class. She was "called" a teacher by the school, completed religious training and was a "commissioned minister" at the school. She was diagnosed with narcolepsy, and threatened to file a lawsuit against the Church under the Americans With Disabilities Act. She claimed that she was terminated in retaliation for threatening to file the lawsuit, while the school said she was terminated for insubordination and failure to follow internal dispute resolution procedures. In a unanimous decision, the Supreme Court found a "ministerial exception" to employment discrimination laws, holding that the courts stay out of the way of the hiring and firing of clergy. Chief Justice John Roberts wrote that "When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us...The church must be free to choose who will guide it on its way." Justice Roberts further wrote that: "The interest of society in the enforcement of employment discrimination statutes is undoubtedly important...But so, too, is the interest of religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission." The Court found that the ministerial exception is not a jurisdictional bar to a lawsuit, but an affirmative defense. The Court also made it clear that there was not a rigid formula for deciding which religious employees would qualify for the ministerial exception. Future cases will be need to be decided by the courts based on the specific facts of each situation.

Practice pointer. This lawsuit was brought on behalf of Ms. Perich by the EEOC. The Obama administration argued in support of Ms. Perich. In rejecting the EEOC's arguments, Justice Roberts also wrote that reinstating Ms. Perich "would have plainly violated the church's freedom", and "would operate as a penalty on the church for terminating an unwanted minister:" Justice Thomas wrote a concurring opinion, as did Justice Alito, who was joined by Justice Kagan. A copy of the entire 39 page opinion can be found at the NYTimes.

2012 Begins With More Weird Stuff

Daniel Burnick — Thu, 05 Jan 2012 10:15:58 -0600

Happy New Year to everyone. 2012 begins with more weird stuff in the employment world, which is actually pretty normal.

Lady Gaga sued for overtime. In New York, Lady Gaga has been sued by her ex-personal assistant for overtime. Jenifer O'Neill sued Mermaid Touring, Inc, Lady Gaga's company, on December 14, 2011, seeking almost $380,000 in unpaid overtime for 4 weeks in 2009 and 52 weeks in 2010 and 2011. The allegations in the suit are Ms. O'Neill was responsible for attending to Lady Gaga's needs "not only in her home, but also during her travels for her global concert tours, from city to city throughout the world, at locales, including stadiums, private jets, fine hotel suites, yachts, ferries, trains and tour buses. Plaintiff was always behind the scenes, and figuratively, if not literally, always at her side." Her job duties included confirming Lady Gaga's schedule, reviewing and reconciling her credit card statements, "ordering meals and ensuring that they were correctly prepared and served at specific times; maintaining the principal's personal supplies, ensuring the availability of chosen outfits; ensuring the promptness of a towel following a shower; and serving as a personal alarm clock to keep [Lady Gaga] on schedule". Ms. O'Neill is alleging that she was on call 24 hours a day, seven days a week: she was responsible for "maintaining [Lady Gaga] on her desired schedule from the earliest waking hour, for being responsive to the slightest need throughout the day, and for addressing spontaneous, random matters in the middle of the night." O'Neill was paid a salary of $75,000 per year. This lawsuit sheds some light into the glamorous life of a pop star, and it will be interesting to see how it is resolved.

President Obama announces 3 recess appointments to NLRB. On a more serious note, the NLRB issued a press release on January 4 announcing President Obama's intent to recess appoint Sharon Block(a democrat), Terence Flynn(a republican) and Richard Griffin(a democrat) to fill the 3 vacant seats on the NLRB. Ms. Block worked for Senator Kennedy, was a senior attorney at the NLRB for a number of years, and currently serves as Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. Mr. Flynn is currently serving as Chief Counsel to NLRB Board Member Brian Hayes. Mr. Griffin is General Counsel for the International Union of Operating Engineers. Since 1983, he has served on the board of directors for the AFL-CIO Lawyers Coordinating Committee.

Practice pointer. These appointments will give the Board it's 5 members, 3 democrats and 2 republicans. Over the past year, the NLRB has been very active and, in my opinion, very pro-Labor. I anticipate these recess appointments will be contested, but if they stand, the NLRB will continue to be active and pro-Labor.

Did ICE Mistakenly Deport a 14 year old runaway? WFAA in Dallas broke a story this week about 14 year old Jakadrien, a 14 year old who ran away from her Dallas area home in the fall of 2010. She ended up in Houston, where she was arrested by police for theft. She provided the police a fake name, and when the name was run through the computer system, it was the name of a 22 year old illegal immigrant from Colombia, who had outstanding warrants for her arrest. ICE was called in, and although she spoke no Spanish, she was deported to Colombia. Upon her arrival in Colombia, she was provided a work card by the government and released. U.S. authorities got involved, and asked the Colombian police to pick her up. She is currently in a Colombian detention facility, and the Colombian government won't release her at this time.

Practice pointer. Although this story is just breaking and a lot of information is still sketchy, questions are being raised over how and why ICE deported a 14 year old U.S. citizen to Columbia. You can read more about it at WFAA, NY Daily News, andUSA Today.

NLRB Extends Deadline For New Poster

Daniel Burnick — Tue, 27 Dec 2011 10:19:34 -0600

The NLRB has pushed back the deadline from January 31, 2012 to April 30, 2012 the deadline to implement the required posting of the Notice of Employee Rights pursuant to the NLRA. The delay came days after Judge Jackson, the District Court Judge assigned to the case in the D.C. Circuit, stated in oral argument that the case is a complicated one and asked the Board to delay the implementation because she needs more time to examine the issues involved. A second lawsuit was filed in South Carolina, and argument is scheduled for January 11, 2012.

11th Circuit to Hear Appeal of Alabama's Immigraton Law as Scheduled

Daniel Burnick — Thu, 22 Dec 2011 15:58:33 -0600

Yesterday, I published a blog entry advising that the State of Alabama had asked the 11th Circuit to stay oral arguments scheduled the last week of February/first week of March to in light of the U.S. Supreme Court agreeing to hear an appeal on Arizona's immigration law. Today, the 11th Circuit announced that it would not stay the appeal pending a Supreme Court decision. I anticipate the oral arguments will be held as scheduled, although the written decision may be delayed until after the Supreme Court hears oral arguments and/or issues a written decision on the Arizona law.

Things to Remember as 2012 Rapidly Approaches

Daniel Burnick — Wed, 21 Dec 2011 13:47:30 -0600

As we prepare to bring to an end 2011, I want to wish all of you a Merry Christmas, Happy Hanukkah, Happy Holidays, and a Happy and Healthy New Year. 2012 will continue to bring many changes in the employment arena, including the following:

Immigration Law: HB 56. A reminder that any business that has contracts with the State of Alabama must begin using E-Verify effective January 1, 2012. All employers are required to use E-Verify on or before April 1, 2012. At this time, the 11th Circuit Court of Appeals has scheduled argument on the appeal of Judge Blackburns' orders enjoining parts of HB56. In light of the Supreme Court's decision to accept an appeal of Arizona's law, Alabama has asked the 11th Circuit to stay the appeal, while the Plaintiffs, including the Department of Justice, have asked to go forward. I will continue to post on my blog as the case winds it way through the courts.

NLRB. A reminder that the NLRB is requiring a new poster to be posted in the workplace effective January 31, 2012. I summarized the poster requirements in a prior blog entry.

11th Circuit issues 2 new discrimination decisions. In August, 2010, I posted an entry entitled "The Case that Never Ends". Tyson was sued by Mr. Hithon, a black employee, alleging that the use of the word "boy" by his supervisor constituted racial harassment. The court previously held in favor of Tyson. Just last week, the 11th Circuit revisited this case, and reversed the prior decision, awarding Hithon $364,000. Interestingly, as the Republican Presidential primary season officially starts, one of the issues being discussed is judicial activism. The Atlanta Journal Constitution reports that the prior decision had been condemned by 11 civil rights pioneers, who had filed a brief with the court linking the use of the word "boy" to slavery. The court found that the use of the word "boy" in and of itself was not discrimination, but the facts surrounding the use of the word "boy" in this case was sufficient to find in favor of Mr. Hithon.

The 11th Circuit also issued a decision 2 weeks ago, in the case of Glenn v. Brumby, addressing harassment of an individual diagnosed with gender identity disorder. Mr. Glenn was born a biological male, and subsequently diagnoses with gender identity disorder. He/she began working for the Georgia General Assembly's Office in 2005 as a male, but in the fall of 2007 advised his/her supervisor that he/she was undergoing a gender transformation and would be coming to work as a female. Glenn was subsequently discharged, and filed a claim alleging sex discrimination and discrimination based on her medical condition. The trial court granted summary judgment in favor of the employee on the sex discrimination claim, and in favor of the employer on the medical condition claim. On appeal, the 11th Circuit reversed the summary judgment in favor of the employer, and found that all persons, whether transgender or not, are protected from gender based discrimination by government agents, and that discriminating against someone on the basis of gender non-conformity constitutes sex based discrimination. It should be noted that the supervisor testified that "he fired Glenn because he considered it inappropriate for her to appear at work dressed as a woman and that he found it unsettling and unnatural that Glenn would appear wearing women's clothing."

Theft by Employees. 2 articles caught my attention today concerning theft by employees. This continues to be a problem for all employers. First, Al.com reports that Walter Skrobak, the former head security guard at the McCalla OfficeMax Powermax Facility, pleaded guilty to stealing over $600,000 of computer software. Between October 2008 and November 2010, he stole at least 1,600 units of computer software and sold them, via Pay Pal, to a party residing out of state for nearly $400,000.

In New York, 3 employees stole almost $58,000 of lingerie from a Victoria's Secret Store. An internal investigation reveals that the thefts occurred over the last 6 months. Incredibly, one of those arrested stated that "My heart dropped when I saw that figure on the Internet...They exaggerated a lot, trust me. They must have charged like full price for everything, and doubled the sales tax". He admits that he only pocketed $800 during the 6 month crime spree.

IRS Announces 2012 Standard Mileage Rates

Daniel Burnick — Wed, 14 Dec 2011 09:27:26 -0600

This past Friday, the IRS announced the standard mileage rates for 2012. They are as follows:

55.5 cents per mile for business travel.

23 cents per mile for medical or moving purposes.

14 cents per mile in services for charitable organizations.

The business rate is unchanged from the 2011 mid year adjustment, while the medical and moving rate has been reduced by .5 cents per mile. These rates are effective as of January 1, 2012.

US Supreme Court to Hear Arizona Immigration Law Appeal

Daniel Burnick — Mon, 12 Dec 2011 10:50:43 -0600

The US Supreme Court announced today that it will hear arguments on Arizona's controversial Immigration Bill. The 9th Circuit Court of Appeals had struck down several provisions of the law, including a provision that makes it a crime not to carry alien registration papers, the provisions that make it a crime for an illegal immigrant to solicit or apply for work, and the portion that requires a police officer to determine the immigration status of a person arrested if there is reasonable suspicion to believe that he or she is in the country illegally. These provisions are similar to provisions in HB56, the Alabama Immigration Bill. It is expected that oral arguments will be held in April, and a decision on the Arizona law should be issued by the end of June. Although this appeal only applies to the injunction issued to stop the implementation of parts of Arizona's law, I anticipate that the Supreme Court's decision will provide guidance to Alabama, and other states, that have enacted immigration laws over the last several years.

Union Elections May Get Quicker and Easier for the Unions

Daniel Burnick — Wed, 07 Dec 2011 10:06:03 -0600

The National Labor Relations Board currently consists of 3 members: 2 Democrats and 1 Republican. At the present time, 2 seats are vacant. The Republican member has threatened to resign so that there would not be a legal quorum, but has not done so. This past June, the NLRB published proposed amendments, which would make it quicker and easier for unions to organize in the workplace. On November 30, the NLRB, on a 2-1 vote along party lines, approved a Resolution to proceed with the new rules. The Resolution is not the law, but is a summary of what will soon be published as the Final Rules. In light of the fact that the Republican member's term expires on December 31, causing the NLRB to lose the ability to have a quorum, I anticipate that their will be a hard push to publish the Final Rules before year end. The changes that will speed up the union election process are:

Pre-election hearings can be limited by the hearing officer to whether a question of representation exists. With limited exceptions, this means that disputes concerning voter eligibility would be determined after the election.

The hearing officer will have to give express permission for parties to file post-hearing briefs.

The right to seek review of any rulings made concerning the appropriate bargaining unit and related items will not be allowed until after the election has taken place and the ballots counted.

The current regulations which provide a minimum of 25 days from the time the regional director directs an election to the time of the election itself, will be rescinded. This time period provided an opportunity for the NLRB to rule on a request for review if filed.

Permission to directly appeal to the NLRB will require a showing of "extraordinary circumstances".

The NLRB's review of a regional director's or judge's resolution of post-election disputes will be discretionary after both stipulated and directed elections.

The NLRB has posted an Explanation of Resolution on it's website.

Practice pointers. With private sector union membership at an historically low rate of 6.9%, labor organizations are pushing these changes to speed up the election process to deny employers the opportunity to educate their workforce as to the pros and cons of unionization. For employers, now is the time to determine if there is any discontent in the workplace, and if so, try to address the issues. If approved, which I think they will be, unions will once again begin campaigning to unionize as many workplaces as possible. With the Republican member dropping off the Board as of December 31,the NLRB will not have enough members to obtain a quorum, and the Democratic majority expects to vote before year end.

Social Media Posts That Get People Fired and Worse

Daniel Burnick — Thu, 01 Dec 2011 08:17:25 -0600

Tomorrow, I will be speaking at Cumberland Law School's 18th Annual Employment Law Seminar. The topic of my speech is "Stupid Is As Stupid Does", which relates to the many stupid things people do on social media that gets them fired, suspended, arrested or is just plain stupid. Among the many social media snafu's that I will be talking about are:

Ex-Congressman Anthony Weiner and his sexting which led to his resignation

A lawyer who told a judge she needed a continuance due to her fathers death, and ended up going on vacation, posting about it on Facebook, and the judge finding out about it

A journalist who was terminated due to a twitter post that showed her holding a sign at an Occupy Wall Street protest, when she was supposed to be covering the protest

A German girl who posted her home address for her 16th birthday party on Facebook, forgot to mark it private, received over 16,000 RSVP's, canceled the party and had to have over 100 police at her house to keep keep the 1,600 people who showed up anyway.

Several nurses and staff members at a California hospital who were suspended or fired for taking pictures of a 60 year old patient who had his throat slashed so severely that he was almost decapitated, and posting the pictures on Facebook.

The gay Rutgers University student who killed himself after his roommate took a video of him having gay sex and then posting it on line.

And, as reported yesterday by the TheEagle.com, the CFO of Texas A & M's athletic department making what he thought were anonymous posts on TexAgs, a popular website for Aggie fans, about the school's president, calling him a "putz" and an "unqualified puppet". Another poster on TexAgs researched the screen name used by the CFO and found that he had previously identified himself as the CFO of the athletic department in a prior post. Stupid is as stupid does.

Practice pointer. Whenever posting on a social media site, one must always assume that you are not anonymous, anyone in the world may see it, and there are serious ramifications for posts that are not appropriate. With a single click, one can be suspended, fired, embarrassed, arrested, or lead to someone else killing committing suicide..

EEOC Reports Record Number of Claims/Monetary Recovery for Fiscal Year 2011

Daniel Burnick — Thu, 17 Nov 2011 08:31:20 -0600

The EEOC recently released FY 2011 statistics. According to the EEOC press release, 99,947 charges were filed during fiscal year 2011, which ended on September 30, 2011. This is the most charges filed in the 46 year history of the EEOC. The EEOC also recovered $365 million on behalf of those who filed charges, also a record number. FY 2011 ended with 78,136 pending charges, a decrease of 8,202 charges from FY 2010. The EEOC filed 261 lawsuits in FY 2011, including 23 alleging systemic allegations affecting large numbers of employees, 61 alleged multiple victims, and 177 individual lawsuits. The EEOC's private sector mediation program recovered more than $170 million in monetary benefits for complainants, also an historic high. The number of mediations that were resolved totaled 9,831, another record. In the federal sector, the EEOC resolved 7,672 requests for hearings, recovering more than $58 million for the complainants. For a comprehensive 86 page report, you can view the FY 2011 Performance and Accountability Report issued by the EEOC.

Practice pointer. I believe that the bad economy is driving the increase in numbers of charges filed with the EEOC. Employers need to be aware that if the economy does not significantly improve in 2012, the number of charges may go even higher. As you have often seen me write, train, train, train and document, document, document.

What do Penn State and an Alabama Law Firm have in common?

Daniel Burnick — Tue, 15 Nov 2011 13:30:50 -0600

By now, we have all heard about the sex scandal at Penn State. An assistant coach, who retired a number of years ago, has been indicted on multiple counts for having inappropriate relations with a number of children. The President has been fired. Joe Paterno, one of the legends of college football, has been fired. A Vice President has been fired. An athletics director has been fired. A riot in the streets of State College. Death threats. Embarrassment. Humiliation. Loss of reputation as one of the school's that "did things the right way". And the gift that keeps on giving this holiday season: continuous coverage of a bad situation that seems to make it worse. And the negative coverage will continue for the foreseeable future. On a legal note, the indicted ex-coach is presumed innocent until proven guilty.

The investigations will continue, and we may never know the true story of what happened, who know about it, and when they found out. So, what can we learn from what is happening at Penn State? First, it is important to have the appropriate policies and procedures in place. Second, follow the policies and procedures. Third, train everyone, from the President (who has been fired) to the janitor (who may not have reported what he saw in a locker room at Penn State for fear of losing his job). Fourth, take all reports of inappropriate conduct seriously, and the more severe the alleged conduct, the more serious the treatment. Fifth, have a public relations plan in place to deal with a crisis such as this. The President "unconditionally supporting" the vice president and athletics director was probably one of the main reasons he was fired. Sixth, document what actions are taken once a report is made, who is interviewed, what they said, the disciplinary action taken, if any, and more training to make sure it doesn't happen again.

In Alabama, a named partner at one of Montgomery's oldest law firms, pleaded guilty to distributing child pornography in one of the largest such cases in Alabama. Investigators found over 200,000 images and 8,000 videos of child pornography on the lawyer's home computer. He admitted to sharing images over 600 times. He was also on the Board of Trustees of a religious school, and worked with youth at a local church. There was no indication that any of the students at the school or youth at the church were part of the child pornography.

Practice pointer. Although these are extreme examples of abhorrent conduct, the lesson to be learned is that anyone can engage in or be accused of engaging in inappropriate and illegal conduct. Both these cases involve well respected, hard working, pillars of their communities. Yet many victims have been harmed, and many others have lost their jobs, been embarrassed and humiliated, and will live the rest of their lives with a soiled reputation. Employers should have the appropriate policies and procedures, they must be followed, everyone must be trained and there must be a crisis management plan in place should the worst happen.

Wage and Hour Violations, E-Verify and Something to Laugh At

Daniel Burnick — Thu, 10 Nov 2011 08:11:20 -0600

Before I get started, I would like to thank all of our Veterans and active service members, and their family members, for their service to our country and the sacrifices they have made to make our country a better and safer place.

You can now follow me on Twitter @DanielBurnick.

FLSA Issues continue to plague employers. Over the years, I have written about the problems associated with employers not properly paying their employees. (October 18, 2011, May 10, 2011, August 17, 2010, July 2, 2010, June 3, 2010 and February 21, 2010). Recently, the Mobile Press Register ran a story pointing out that wage and hour litigation was up 18% in 2010, and the upward trend is expected to continue during 2011 and into 2012. The problems include misclassification of employees as exempt when they should be non-exempt, the misclassification of employees as independent contractors, and failure to pay overtime for any work performed in excess of 40 hours a week. As pointed out in the Mobile Press Register's article, "review your compensation practices", "verify your record keeping", make sure your records are accurate, and make sure overtime is paid properly.

Practice pointer. As we head towards the end of another year, now is the time to do an audit of your policies and procedures to verify compliance with the FLSA, and train all your employees on these issues.

E-VERIFY and unintended consequences. Recently, Bloomberg Businessweek ran an article entitled "A Verification System for New Hires Backfires". In this article, a number of examples are given where employers who have enrolled in the E-Verify system have had trouble finding enough workers to do the work. About 5% of the companies, around 300,000, use E-Verify. This number will go up as states around the country implement the mandatory use of E-Verify for all employers. In North Carolina, a local flower wholesaler implemented E-Verify, and the owner reports that he could not find enough workers: "Those who want to work fail to pass E-Verify, and those who pass fail to work." In Arizona, which made E-Verify mandatory in 2008, worker shortages have been reported in the construction industry and the food service industry. One way employers are trying to avoid the mandatory use of E-Verify is to misclassify workers as independent contractors. A Congressional Budget Office report from 2008 estimates that the mandatory use of E-Verify on a national basis would result in the loss of over $17 billion in federal tax revenue.

Practice pointer. Employers who attempt to avoid the mandatory use of E-Verify in Alabama are subjecting themselves to potential exposure under many different laws: Alabama's Immigration law, which may result in the loss of business licenses, claims for overtime under the FLSA, and tax liability under both state and federal laws.

Unusual excuses to take a sick day. CBS Moneywatch had an interesting article discussing the most unusual excuses to take a sick day. Some of them I have actually seen being used. The article refers to a CareerBuilder survey showing that 29% of employees admitted to calling in sick when they were fine. I expect the actual number to be higher. The study also showed that 15% of employers have fired an employee for calling in sick when they were not, and 28% of employers admitted to checking up on employees who they thought may not have been sick. Checking up included requiring a doctor's note (69%), calling the employee at home (52%), having another employee call (19%), and driving by the employee's house (16%). Some of the unusual excuses listed included a deer bite during hunting season, the kidnapping of a relative in Mexico, drinking anti-freeze by mistake and going to the hospital, and an employee's 12 year old daughter stealing a car so the employee could not get to work.

State Court Dismisses Immigration Lawsuit at Request of Plaintiffs

Daniel Burnick — Mon, 07 Nov 2011 14:37:56 -0600

According to Al.com, on Friday, November 4, 2011, Judge Johnny Hardwick, a Montgomery County Circuit Court Judge, dismissed a lawsuit filed by a number of plaintiffs, including 2 unauthorized aliens and 2 Hispanic U.S. citizens. The dismissal came at the request of the plaintiffs. This does not impact the current cases that were appealed to the 11th Circuit Court of Appeals which I have written on previously.

11th Circuit Addresses Alabama Age Discrimination In Employment Act

Daniel Burnick — Tue, 01 Nov 2011 06:16:49 -0600

Recently, the 11th Circuit issued an opinion addressing the Alabama Age Discrimination In Employment Act (AADEA) in the case of Ehrhardt v. Haddad Restaurant Group. Ehrhardt, a General Manager, was demoted due to poor sales and profits at the restaurant and his poor management of employees. Ehrhardt challenged and rebutted the latter, and the court found that there was little evidence indicating that he had problems with staff. The Court found that the restaurant did not discriminate against Ehrhardt by demoting him from General Manager to Beverage Director based on declining sales. Ehrhardt was subsequently terminated as Beverage Director since the restaurant, based on an economic decision, decided there was no reason to continue to employ and pay commissions to a Beverage Director in a restaurant that was losing money.

Under the AADEA, "no employer...shall discriminate against a worker 40 years of age and over in hiring, job retention, compensation, or other terms or conditions of employment". The analytical framework of the AADEA is the same as the federal Age Discrimination In Employment Act. The Court examined this case pursuant to the Supreme Court's Gross decision, holding that in order to establish a disparate treatment claim under the ADEA, "a plaintiff must prove by a preponderance of the evidence...that age was the "but-for" cause of the challenged employer decision". Although the Gross decision did not answer the question of whether the evidentiary framework of the McDonnell Douglas case is appropriate in the ADEA context, the 11th Circuit used both the Gross decision and the McDonnell Douglass decision to review Ehrhardt's claim. Under McDonnell Douglas, there is a three prong test to analyze discrimination claims: first, a plaintiff must establish a prima facie case of discrimination; second, the defendant must articulate a legitimate, nondiscriminatory reason for the adverse employment action; and third, the plaintiff must proffer evidence sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment action. Based on the facts above, the 11th Circuit affirmed the granting of summary judgment in favor of the restaurant on Ehrhardt's' AADEA claim. The restaurant was represented by one of my partners, Kyle Smith.

Practice pointer. The "but for" test adopted in the Gross decision is a concept favorable for employers. The 11th Circuits' use of both the Gross and McDonnell Douglas tests lays the groundwork for evaluating claims brought under the AADEA as well as the ADEA.

State Court Judge Declares Part of Immigration Law Unconstitutional

Daniel Burnick — Tue, 25 Oct 2011 08:42:15 -0600

On Monday, October 24, Jefferson County Presiding Judge Scott Vowell entered an order declaring that Section 27(a) of the Immigration Act unconstitutional. This section provides that "No court of this state shall enforce the terms of, or otherwise regard as valid, any contract between a party and an alien unlawfully present in the United States, if the party had direct or constructive knowledge that the alien was unlawfully present in the Untied States at the time the contract was entered into...." Judge Vowell referenced Section 95 of the Alabama Constitution, which provides that "There can be no law of this state impairing the obligations of contracts by destroying or impairing the remedy for their enforcement....After suit has been commenced on any cause of action the legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit." Judge Vowell found that since the lawsuit was commenced before HB 56 was passed and signed into law, Section 27(a) would not apply to the pending action. Judge Vowell went on to state that "The Court declares that Section 27(a) of the Act violates the Alabama Constitution of 1901, to the extent the Legislature has attempted to take away an existing cause of action in a pending lawsuit." As such, this ruling ONLY APPLIES to lawsuits filed before HB 56 became effective. Also, this ruling is technically only binding on actions pending in Jefferson County, although other counties may rely on Judge Vowell's opinion.

Practice pointers. The ruling declaring Section 27(a) unconstitutional only applies to cases filed before the HB 56 became effective. After Judge Vowell overruled that Defendant's Motion to Dismiss, the parties settled the case, so an appeal of this order is very unlikely. I anticipate that other courts may examine the constitutionality of Section 27(a) in cases filed after the effective date of HB 56. The Federal Courts did not enjoin the enforcement of Section 27(a) in the federal litigation. Also, remember that a lawsuit challenging the constitutionality of HB 56 is still pending in State Court in Montgomery, and that judge has not yet ruled.

Georgia Garnishments, Florida Minimum Wage and Misclassification of Employees as Independent Contractors

Daniel Burnick — Tue, 18 Oct 2011 11:36:08 -0600

Since we have all been overloaded with immigration issues, I will be looking at 3 separate issues in this post. First, the Georgia Supreme Court adopted an opinion issued by the Georgia Bar Standing Committee on the Unlicensed Practice of Law (UPL) finding that responding to a garnishment by a corporation is a legal proceeding, and corporations must be represented by counsel in doing so. Employers in Georgia have 30 days to serve and file an answer to a garnishment, and must respond every 30 days during the life of a continuing garnishment. If a response is not timely filed, the employer may be found in default and may be liable for the entire debt of the employee. In Georgia, as in Alabama, a corporation cannot represent itself in a judicial proceeding. Georgia has an exception for cases involving claims of less than $15,000, which are filed in Magistrate Court, where any full time officer or employee of a corporation may represent the corporation.

Practice pointer. Using an attorney to respond to garnishments in Georgia will result in additional costs to corporations. However, not using an attorney may result in civil and/or criminal charges for the unauthorized practice of law, and may result in a default being entered against the corporation for the entire amount of the employee's debt.

Effective January 1, 2012, the minimum wage in Florida will increase from $7.31 per hour to $7.67 per hour. This increase is the result of 2004 constitutional amendment that requires a new wage calculation every year on September 30, based on the Consumer Price Index.

Practice pointer. Effective January 1, it will cost more to pay employees in Florida, and I expect that there will be a roll-up, although slight, for workers who are making more than minimum wage as new employees are hired.

The IRS recently announced that is is offering a new "Voluntary Classification Settlement Program" (VCSP) allowing employers who agree to reclassify their improperly classified "independent contractors" as "employees" in exchange for paying significantly reduce penalties. Aimed at small employers, but open to all, the VCSP allows employers to treat their misclassified independent contractors as employees going forward and the IRS will assess employment taxes, at a reduced rate, only for the tax year before the agreement was entered into, with no penalties, interest or audits. There are some hidden pitfalls that employers must be aware of. First, the IRS has entered into a Memorandum of Understanding with the Department of Labor concerning referrals and sharing of information in worker classification cases. The DOL, or the employee, may come in seeking back benefits and wage and hour benefits (either minimum wage and/or overtime) against the employer. This is after the employer admits to the IRS that it has misclassified it's employees as independent contractors. The Office of Federal Contract Compliance Programs and the Occupational Safety and Health Administration will also be receiving and sharing this information. There may also be potential ERISA violations, unemployment compensation issues, workers' compensation insurance issues and other hidden landmines for employers.

Practice pointer. As I have written before, it is important for workers to be properly classified, either as employees or independent contractors. Whether or not an employer decides to take part in the VCSP program, workers need to be properly classified. The IRS's VCSP sounds good, but there are dangers involved in participating in it. Before doing so, it would be wise to consult with legal counsel and/or an accountant.

11th Circuit Enjoins Two More Provisions of Alabama's Immigration Law

Daniel Burnick — Fri, 14 Oct 2011 11:57:43 -0600

On Friday, October 14, the 11th Circuit Court of Appeals entered an order enjoining the enforcement of two more sections of Alabama's new immigration law. The Court enjoined the enforcement of Section 10, which states "(a) In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 18 USC Section 1304(e) or 8 USC Section 1306(a), and the person is an alien unlawfully present in the United States."

The Court also enjoined the enforcement of Section 28 which addresses elementary and secondary school students and requires schools to determine at enrollment whether the student was born outside the US or is the child of an alien not lawfully present in the US, and qualifies for assignment to an English as Second Language class or other remedial program. If upon review of the student's birth certificate, it is determined that the student was born outside the US or is the child of an alien not lawfully present in the US, the parent, guardian or legal custodian shall notify the school of the student's citizenship or immigration status. Each school district is required to collect and compile this data and submit it to the State Board of Education as an annual report. HB 56 PROHIBITS the public disclosure of any information which personally identifies any student,with some limited exceptions. The student will not be prohibited from attending school if he/she is not legally in the country.

The following provisions were enjoined by Judge Blackburn: 8, 10(e), 11(a), 13, 16 and17, and the 11th Circuit did not lift the injunction as to these provisions.

Practice pointer. As the Court pointed out in the opinion, this decision does not bind the merits panel, which will review the case after full briefing and oral argument.

Alabama's Immigration Law Impacts Department of Public Health

Daniel Burnick — Tue, 11 Oct 2011 09:27:46 -0600

Alabama Department of Public Health delays licensing process.

Recently, the Alabama Department of Public Health sent letters to all businesses it regulates advising them that the renewal of licenses for 2012 and the processing of new licenses has been impacted by the new Immigration Law. The ADPH is taking the position that the license is a public benefit, and thus covered by the law. ADPH believes that it will take 2-4 weeks to determine what needs to be done to comply with the law to show that individual owners of regulated businesses are citizens or legally present in Alabama. With a calendar year renewal process, it is likely that there will be delays in issuing 2012 licenses. A similar situation occurred for 2011 licenses, when the licenses were required to be printed on a new type of paper, and many licenses were not issued until March, 2011. Among those businesses impacted by the ADPH are abortion clinics, hospitals, ambulatory care centers, end stage renal disease facilities, hospice, home health care, rehabilitation centers, sleep disorder clinics and restaurants.

Practice pointer. I anticipate that the licensing process will be delayed into 2012, and regulated businesses will need to continue operating with licenses that technically expire in 2011. Also, those regulated by the ADPH will need to comply with whatever new forms and documents are adopted. Finally, ADPH, already short staffed, will incur additional time and expense in complying with the law. We have already seen the impact on drivers licenses. Be on the lookout for other state agencies that will be implementing new requirements for licenses, such as building trade licenses (plumbing, electrical, HVAC, etc), Department of Mental Health, Medical Board, Nursing Board, etc.

First Immigration Convictions Reported

Al.com is reporting that 4 individuals were arrested following 2 traffic stops in Decatur late Sunday/early Monday. The 4 pleaded guilty to misdemeanor charges of not having proper documentation. They were sentenced to a 30 day suspended jail term and fined $300 plus court costs. They are being held in custody pending a decision by federal immigration authorities as to whether they will be deported or not.