Alabama Employment Law Report

Bentley May Veto New Immigration Bill

Daniel Burnick — Thu, 17 May 2012 13:58:09 -0600

HICA may have jumped the gun in stating that the new Immigration Law passed yesterday was vetoed by Governor Bentley. According to the Gadsden Times, Governor Bentley has not vetoed the bill yet, and asked the Legislature to consider changing 2 aspects of the bill that was passed yesterday. Bentley indicated he may veto the bill if the changes are not made. More to follow.

Governor Vetoes New Immigration Bill

Daniel Burnick — Thu, 17 May 2012 09:57:27 -0600

According to the Hispanic Interest Coalition of Alabama, Governor Bentley has vetoed the new immigration bill passed by the legislature last night. HICA also reports that Governor Bentley has added Immigration to the issues for the special session which began this morning. I will update the status as I find out more about it.

Religious Discrimination Results in $5 Million Verdict

Daniel Burnick — Mon, 14 May 2012 12:49:47 -0600

AT&T was hit with a $5 million jury verdict for discriminating against a Muslim woman. According to the Kansas City Star, Susann Bashir worked for AT&T for more than 10 years in Kansas City. Before she converted to Islam, she was recognized by AT&T as doing a good job. After her conversion, co-employees began harassing her about her religion. Bible verses were left on her desk, she was asked if she was going to blow up the building she worked in, and she was called a "towelhead" and a "terrorist". She called the AT&T Employee Help Line to complain and ask that her co-workers receive sensitivity training. In 2008, she filed a charge with the EEOC and an investigation started. She says that after the investigation started, her supervisor "snatched her scarf and exposed her hair" during a routine office meeting. Muslim women consider their head and hair "private parts", which why they keep them covered in public. She complained that she was so stressed, that she could not return to work. She asked that either she be transferred, or her boss be removed. She was fired after being away from work for 9 months. She had been making $70,000 a year when she was terminated. She alleged that the stress caused her to go through a divorce, and she moved to Alaska. The jury awarded her $120,000 in lost wages and other compensatory damages, and $5 million in punitive damages. Her claim for attorneys fees is pending. Missouri law caps the award at 5 times the actual damages, so it is likely that the judge will reduce the award.

Practice pointers. It is important that when a complaint is made, that a prompt, thorough and complete investigation take place. It appears as if there was a hostile work environment where Ms. Bashir worked, and no investigation was done after she complained. The entire work force should be trained as to what is prohibited by Title VII, including supervisors. Failing to do so can result in large verdicts, bad publicity and disruption in the workplace. It should be noted that AT&T was hit with a $1.3 million verdict in 2009 in Jonesboro, Arkansas, when 2 former employees were fired for attending a Jehovah's Witnesses convention.

What does Title VII have to do with Sports?

Daniel Burnick — Wed, 02 May 2012 09:10:45 -0600

This past weekend was an exciting one for me. I returned to my home town of Lakewood, New Jersey (yes, I am a Yankee who stayed in Alabama) where I graduated from high school in 1976. I had the honor and privilege of being inducted into the Lakewood High School Athletic Hall of Fame. I played football and threw the discus while in high school. My school was extremely diverse and I participated in sports with African-Americans, Caucasians, Hispanics, Cubans, Estonians, Jews, Catholics, and more. I was fortunate to be exposed to a cross section of society at an early age. So, what does this have to do with Title VII?

For many years, there has been a problem with racism in the professional soccer leagues all around Europe. CNN published an interesting article this past November, pointing out that the racism is not only between players, but also comes from fans. From throwing bananas at a Brazilian player in Russia to Nazi salutes, there were 195 documented incidents of racist and discriminatory behavior from September 2009 through March 2011.

In American football, a court in New York is allowing a lawsuit filed by 2 massage therapists to proceed against Brett Favre and the New York Jets. The therapists allege that they were sexually harassed by Favre who sent them sexually suggestive text messages. They also allege that they were fired after complaining to the Jets about the text messages.

Similar conduct has recently occurred in the United States. Just last week, during the National Hockey League playoffs, the Boston Bruins lost in overtime to the Washington Capitals in the 7th game of their series. The winning goal was scored by an African American player. CNN reported on the outbreak of racist comments across the internet by Boston fans. This has led to investigations at some schools in New England concerning students who may have posted racist remarks, including at least 5 students (3 of whom are athletes) at Gloucester High School and at least one student at Franklin Pierce University.

Last week also saw an anti-Semitic incident involving baseball. In New York, Delmon Young, an outfielder with the Detroit Tigers, who was born in Montgomery and played for the Montgomery Biscuits, was arrested after an altercation with a number of men outside a hotel. Young had been drinking and has been accused of yelling Anti-Semitic remarks at them. Young was suspended for 7 games without pay. With a salary in excess of $6 million this year, he will lose more than $240,000. He was also ordered to have a psychological and physical evaluation by Major League Baseball. Although relatively rare, there have been other similar incidents in baseball: In 1993, Marge Schott, the ex-owner of the Cincinnati Reds was fined $25,000 and suspended for 8 months after making anti-Semitic and racist comments, and Umpire Bruce Froemming was suspended for calling a female administrator for umpires a "Stupid Jew Bitch" in 2003.

Concerning activities that may be in violation of Title VII, discrimination or harassment based on sex, race, color,gender, religion and national origin, professional sports seems to be a microcosm for the rest of society. On a regular basis, charges continue to be filed with the EEOC alleging violations of Title VII. Lawsuits are regularly filed alleging violations of Title VII. Judgments are regularly returned against employers for violating Title VII.. Employees are regularly fired for violating Title VII. In just the past several weeks, a Taco Bell in North Carolina paid $27,000 to resolve a religious discrimination claim filed by the EEOC, a Little Rock, Arkansas real estate company settled a class action race discrimination claim for $600,000, and a Burger King restaurant in Oregon agreed to pay $150,000 to settle a sexual harassment claim where a teen employee was sexually harassed by her supervisor at her first job.

Practice pointer. Employers must continue to educate and train ALL employees, from top to bottom, as to what is prohibited by Title VII. Complaints must be taken seriously and properly investigated. Appropriate disciplinary action, up to and including termination, must be taken once the investigation is complete. These cases are expensive, legal fees, settlements/judgments and lost time dealing with the allegations. Morale is decreased when harassing conduct occurs in the workplace. And employers don't want to be named in an EEOC press release or on the front page of the local newspaper.

Immigration, Unions, Facebook and more

Daniel Burnick — Wed, 25 Apr 2012 08:58:01 -0600

Several mid-week updates on a variety of topics.

IMMIGRATION.

The U.S. Supreme Court is hearing oral argument on Arizona's immigration law today. Their opinion(s) are expected in several months. I will update you on this topic once a decision is rendered.

In the meantime, the Alabama Legislature is working on potential amendments to HB56. I have not reported on this, and will not, until it becomes law. When and if the Legislature approves revisions that Governor Bentley will sign, I will compare the new and old laws as they pertain to employment issues.

FACEBOOK PASSWORDS.

There has been a lot of publicity about whether or not companies can ask employees or prospective employees for passwords to their Facebook and other social media accounts. Maryland is the first state to pass a law prohibiting this practice, although as of this time, the Governor has not signed it into law. Many other states are considering passing such laws. Some members of Congress are also looking into this issue, including asking the EEOC to determine if asking for passwords is coercion which could be in violation of the Computer Fraud and Abuse Act or the Stored Communications Act.

For employers that do ask for passwords to social media sites, and actually look at them, caution is advised. Learning too much information can lead to lawsuits. Is the employee/prospective employee a member of a protected class, such as pregnant, disabled, etc? By disciplining or refusing to hire such a person, claims could be made for alleged violations of Title VII, Pregnancy Discrimination, GINA, ADA, and other laws. The NLRB, which is extremely active right now, may consider this practice to be a violation of the NLRA, by discouraging employees from concerted activity: communicating about the terms and conditions of their employment. This could lead to a push for unionization by the workforce at employers who ask for passwords

UNIONIZATION.

Speaking of unionization, April 30 is the effective date for the new rules about how unions can be formed. Yesterday, the Senate blocked an attempt to delay the implementation of the rules. There is currently a lawsuit filed by the U.S. Chamber of Commerce, but as of now, there has been no court ruling staying the implementation of the new rules. I posted about the new rules on December 7.

EEOC RULES ON TRANSGENDER PROTECTION.

The Los Angeles Times reported today that the EEOC has ruled that transgender individuals may file claims under Title VII. Mia Macy worked for the Phoenix Police Department and worked with an ATF ballistics team while they were in Phoenix. At the time Macy applied for a job and was accepted, pending a background check, with the ATF, she was a male. After applying, Macy went through a transition and became a female. Macy and her wife moved to California for the new job, but was told the job had been eliminated due to budget cuts. In fact, the job had been filled with someone else. Macy filed a complaint with the EEOC alleging sex and gender discrimination. The EEOC, which had been inconsistently enforcing Title VII in cases involving transgender claims, used Macy's case to clarify it's position that Title VII does apply to claims involving transgender discrimination, and will now allow transgender individuals to file charges in all jurisdictions. The EEOC's enforcement activities will apply in both the public and private sectors.

April 30 NLRB Posting Requirement Blocked

Daniel Burnick — Wed, 18 Apr 2012 08:25:58 -0600

I have posted recently about the NRLB requirement for the posting that informs employees of their rights under the NLRB. Last week, a Federal District Judge in South Carolina found that the Poster was unlawful, but did not block it's implementation. This created a split between the courts, and left employers wondering what to do. Now, the U.S. Court of Appeals for the District of Columbia Circuit has entered an injunction halting the implementation of the NLRB's rule to post this information. The Court will hear additional arguments concerning the Poster requirements to determine if they are legal or not. In light of this ruling, there is no requirement to post the NLRB Poster at this time.

Lessons to be Learned from Coach Petrino

Daniel Burnick — Thu, 12 Apr 2012 07:38:56 -0600

Many of you have either heard of or followed Coach Bobby Petrino and his escapades over the last several weeks. He was terminated from his employment as head coach at Arkansas and his conduct can be a lesson for many in the workplace. As Birmingham News columnist Jon Solomon wrote "Petrino hired his mistress, Jessica Dorrell, over 158 other applicants to do NCAA eligibility work, paid her $20,000 under the table, and lied to his boss about their relationship. Try doing that at your job and see how long you'll be employed." I have often said that anyone within an organization can subject the organization to embarrassment, lawsuits, adverse publicity and adverse consequences, from the highest (President/Head Football Coach) to the lowest level employee. This is a perfect example. Arkansas knew or should have known what it was getting with Petrino: someone who had problems at other jobs and may have had a history of dishonesty. He was paid millions of dollars, and was successful as a football coach, taking the Arkansas program to heights it has not seen for decades. Through his selfishness, he left Arkansas no choice but to terminate him for cause. Other issues need to be addressed, such as what to do with the 25 year old mistress? Will any of the 158 applicants sue Arkansas for not hiring them? Did Dorrell report the $20,000 as income? What impact will Petrino's conduct have on his wife and 4 children? Will he find another job?

As with many situations, the cover-up after the motorcycle accident caused additional problems. Originally, Petrino reported that he was the only one on the motorcycle. A lie. He denied his relationship with Dorrell. A lie. We will never know, but if Petrino came clean with his boss after the wreck, would he still be the head coach at Arkansas? His chances certainly would have been better if he had told the truth.

Practice pointers. All employers must be aware that problems can occur with anyone at the company. When hiring someone, know who you are hiring, and be aware that prior problems may appear again. When a problem does occur, it is important to do a timely, thorough and complete investigation, and take the appropriate remedial measures as soon as possible.

Governor Signs Bill Giving Tax Incentive for Hiring Recently Discharged Veterns

Daniel Burnick — Thu, 05 Apr 2012 13:53:30 -0600

On Wednesday, Governor Bentley signed into law a bill giving Alabama employers a tax credit of $1,000 for hiring unemployed veterans who served overseas and were discharged within 2 years of the hire date. The law also gives a tax credit of up to $2,000 to assist an unemployed veteran to meet the costs of starting a small business. It is reported that this bill could have a negative annual impact of up to $1,000,000 a year in the collection of state income taxes.

DOL Issues New FMLA Forms

Daniel Burnick — Wed, 04 Apr 2012 08:42:57 -0600

6 Medical Certification Forms used by employers for FMLA leave expired in December. The DOL has issued new forms, which expire on February 28, 2015. The new forms are available on the DOL website: Notice of Eligibility and Rights and Responsibilities, Designation Notice, Certification of Health Care Provider for Employee's Serious Health Condition, Certification of Health Care Provider for Family Member's Serious Health Condition, Certification of Qualifying Exigency for Military Family Leave, and Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave. These new forms should be used immediately.

Work, Drinking and Driving Don't Mix Well

Daniel Burnick — Mon, 02 Apr 2012 06:26:25 -0600

Al.com reported that a 64 year old Tuscaloosa businessman has been charged with vehicular homicide, assault, DUI and leaving the scene of an accident after he allegedly struck and killed a 7 year old child, and injured her 2 year old sister and 28 year old mother. Danny Ray Smith was reportedly hosting a party at his business located near the Tuscaloosa airport for the airshow. Police reports indicate that the mother and her children were walking on the shoulder of the road when they were struck by Mr. Smith. Mr. Smith is presumed innocent unless and until he is proven guilty.

Practice pointer. There are many opportunities year round for businesses to host parties: football season, golf tournaments, golf outings, automobile races, etc. Anytime alcohol is served at these events, it can lead to disastrous and tragic results. I do not want to minimize the loss of life and injuries suffered by this family, but it is important to understand that not only are the lives of the victims lost or ruined, but the business will suffer consequences as well. Bad publicity, arrests and civil lawsuits are sure to follow incidents such as the one that happened in Tuscaloosa this weekend. There is always a risk when serving alcohol at corporate events, and if alcohol is served, it must be done carefully and under proper supervision.

End of the First Quarter 2012 and Lots to Talk About

Daniel Burnick — Fri, 30 Mar 2012 10:51:49 -0600

HB 56/Alabama's Immigration Law. I don't want to sound like a broken record, but....Sunday April 1 is the day HB 56 requires all employers in Alabama to use E-Verify for new employees. This is in addition to the use of I-9's. Employers that knowingly hire or continue to employ unauthorized aliens are subject to harsh penalties, including the suspension or revocation of business licenses.

ADEA. The EEOC has issued it's Final Rule on Reasonable Factors Other Than Age under the ADEA. According to the EEOC press release, "The final rule clarifies that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, unless the employer can show that the policy or practice is based on a reasonable factor other than age." The Final Rule will be important for companies defending ADEA claims when the defense is that the decision made in regard to an individual over 40 was not predicated on age, but rather a reasonable business decision.

Social Media. I hate auto-correct on my Blackberry, as do many users of Iphones, Droids, etc. Recently, WSBTV in Atlanta reported that the West Hall High School and West Hall Middle School were put on lock down after a student sent a text message that read "gunman to be at west hall." The message was supposed to be "gunna be at west hall", but the auto-correct feature changed the message. The student sending the message was not charged after police discovered what happened.

FMLA. The United States Supreme Court, in a 5-4 decision, found that states are not subject to the self-care provisions of the FMLA. In 2003, the Court found that states could be sued for damages for violations of the family care provisions of the FMLA, since the family leave policies in place with states either discriminated on the basis of sex or were administered in a way that discriminated on the basis of sex. Under the self-care provisions of the FMLA, there were no policies that discriminated on the basis of sex, or were administered in a way that discriminated on the basis of sex. Thus states are immune from damages under the Fourteenth Amendment.

GINA. Effective April 3, 2012, the EEOC has new record keeping requirements under the Genetic Information Nondiscrimination Act of 2008. GINA applies to employers with 15 or more employees, employment agencies, labor unions and federal sector employers. The new rule requires all employment and personnel records to be kept in the same manner as required under Title VII and ADA. Records containing medical or genetic information should be segregated from other personnel records and access limited to those with a business need to see them.

Spelling out numbers. Oftentimes, lawyers are criticized for all the legalize that appears in documents. One of the areas of 'legalize' is the fact that lawyers almost always spell out numbers. Every now and then, a lawsuit demonstrates why this is done. Michael Fox blogged last week about a lawsuit that went to trial in London. The suit is focused on whether a currency trader was to be paid 2.4 million rand or 24 million rand, a difference of $980,000. JPMorgan is arguing that it was a typographical error in the numbers. The numbers were not spelled out.

Social Media Update: What is going on here?

Daniel Burnick — Wed, 28 Mar 2012 09:22:21 -0600

Several weeks ago, I had the pleasure of talking to a fraternity at UAB about the impact of Social Media in the "real world". Besides my own personal interest in this area, the impact social media has on my clients, and all the crazy stories out there, my 2 sons, 21 and 23, are regular users of social media. Over the past couple of weeks, there have been a lot of stories on employers asking employees for the passwords to their personal social networking sites. Although there is no law, per se, prohibiting this, it is not a good idea for many reasons. In no particular order:

1. It is probably against the terms and conditions of the use agreement with the host.

2. Employers may find out more information than they really should know, leading to claims of illegal conduct, including discrimination based on age, race, sex, disability, GINA, etc.

3. Under the Stored Communications Act, it is illegal, both civilly and criminally, for an individual to access another persons social networking site. It should be noted that the Justice Department advised Congress that it would not prosecute such violations.

In California, an employee who was responsible for the social media of her employer was injured in a car accident. She used both company owned and personal social media sites to promote the business. While she was recovering from her serious injuries, the company accessed her personal sites to continue promoting the company. She sued, alleging a violation of the Stored Communications Act, and the court is allowing the case to proceed to trial. In another case, the ex-girlfriend of an undercover detective in New Jersey was charged with identity theft after posing on line as her ex-boyfriend, and making defamatory statements about him.

Speaking of defamation, in Georgia, a Gwinett County jury recently returned an $900,000 verdict against an individual who defamed the plaintiffs (a Husband and Wife) on social media sites. The plaintiffs had asked the jury for $48,000 for each of them. This was only the most recent of three social media defamation cases over the past 15 months. According to the Daily Report, each of these cases resulted in six figure verdicts.

In Washington state, a judge has ruled that an employee who was fired after she sent her manager a number of Facebook messages about her mental state and the fact that she was thinking of killing herself would proceed to a jury trial. Ms. Peer was seeking treatment for depression, and she was transferred to an early shift at work. She complained to her boss about her depression, crying, stress, that she was thinking about committing suicide and that "work feels like a war zone. I have some serious PTSD. Walked in the building and automatically started puking this morning". Although she had a release from her doctors, the company terminated her after she refused to have her medical providers complete accommodation paperwork. The company, based on the Facebook comments, was "concerned that you are not able to perform your job functions without accommodation, and that attempting to perform your job functions now presents direct risks or threats."

In New Jersey, a criminal defendant was on trial for selling 1,500 Ecstasy pills to an undercover detective. Although the trial judge instructed the jurors on a regular basis not to conduct internet research, the foreman confirmed his thoughts through internet research that the defendant would get a minimum of 10 years in jail if found guilty. The foreman refused to convict, resulting in a hung jury. After 2 jurors complained separately, the trial judge found the foreman guilty of criminal contempt and fined him $500. He was facing up o 6 months in jail and a $1,000 fine.

In New Orleans, an Assistant US Attorney admitted making hundreds of posts at NOLA.com under another name concerning a criminal investigation into a landfill. He was removed from all cases on which he commented by the US Attorney. Among the comments he made were allegations that one of the judges "loves killers", and that the US Attorney was taking credit "for other people's hard work. It is the assistants and agents who do the work and should be congratulated".

I cannot make this stuff up. It happens every day. Be careful what you do on social networking sites and on the internet. It can get you in a lot of trouble, fired, embarrassed, sued, arrested or worse.

E-Verify is almost here: April 1 is deadline for all Alabama employers

Daniel Burnick — Thu, 22 Mar 2012 08:12:40 -0600

HB 56 Update. April's Fools day. My birthday. Mandatory use of E-Verify for all employers in Alabama. April 1 is the magical day for all of these. Over the past month, I have had many clients asking questions about what they need to do to comply with HB 56 and the E-Verify requirements. The E-Verify provisions of HB 56 were not challenged in court, and thus are the law. Since September 1, 2011, when the law became effective, it has been illegal to knowingly employ, hire or continue to employ an unauthorized alien. All businesses and entities doing business with the state, any political subdivision of the state or any state funded agency were required to start using E-Verify as a condition of an award of such a contract effective January 1. I have seen a number of forms used by various public entities that they have sent out to their contractors that must be completed in order to continue doing business. As of April 1, all employers and business entities, which are broadly defined, must use E-Verify for all new employees that are hired. Violations can lead to severe consequences, including the permanent revocation of all business licenses and permits throughout the state for a third violation.

As I have previously posted, E-Verify CANNOT be used for existing employees, and must be used within 3 days after the new employee is hired. E-Verify DOES NOT take the place of I-9 forms: they too must be completed withing 3 days of a new employee being hired. I have stated before, and will state again, that I-9's should be audited to make sure that they are in compliance with federal law. Any such audit should be done by someone knowledgeable with I-9's, because an improper audit or improper corrections may cause more of a problem then if nothing was done.

NLRB Poster Update. Another reminder: the NLRB's required poster language takes effect on April 30. I have previously posted about this requirement in detail.

DOJ Implements ADA Guidelines for Pool Lifts

Daniel Burnick — Wed, 14 Mar 2012 12:33:30 -0600

The Department of Justice has refused to extend the March 15, 2012 deadline for owners of public pools to install fixed lifts for each pool they operate. Hospitality Net had several Congressmen write to DOJ to obtain clarification, and the DOJ refused to modify the guidelines or extend the deadline. The guidelines require a fixed, not portable lift, for each water element, including pool, wading pool, hot tub and spa. The Washington Examiner estimates that there are approximately 300,000 public pools that will need to install these fixed lifts, as a cost of $8,000 to $20,000 each. The Washington Examiner expects a large number of lawsuits to be filed by the various firms around the country, including in Alabama, that pursue ADA litigation on a regular basis.

Practice pointer. If you operate a public access pool, tomorrow is the deadline for installing these lifts. Hotels, Community Centers, Gyms, etc are all subject to these guidelines. I anticipate a number of lawsuits being filed in the near future to enforce these requirements.

Restaurants, Nursing Homes and Workers' Compensation Issues in the Workplace

Daniel Burnick — Tue, 13 Mar 2012 13:16:47 -0600

FLSA. The last month was particularly hard on restaurants and bars. First, a restaurant owned in part by celebrity chef Mario Batali agreed to a $5.25 million FLSA settlement. The case arose from a number of his New York restaurants, including Babbo, Casa Mono, the Spotted Pig and Tarry Lodge. Servers at these restaurants sued in 2010, claiming violations of the FLSA including allegations that the restaurants were keeping up to 5% of wine and alcohol sale gratuities, failed to pay minimum wage, and other allegations. Eleven waiters and bartenders were the named plaintiffs in this collective action.

Title VII. In Chicago, 19 women filed a sexual harassment lawsuit against the Tilted Kilt, which has a location in Birmingham. The suit alleged that the managers created a "sexually hostile, offensive, humiliating and degrading work environment" that was "frequent, severe, on-going and lasted" the entire time the plaintiffs worked there. The lawsuit contained almost 30 examples of improper conduct, including making comments such as "You don't know what I'd like to do to you" and sticking"g a straw full of water inside outfits, and saying "I'm trying to get your panties wet." The parent company of the Tilted Kilt said that the location in Chicago is an independently franchised business. Allegations also include retaliation and intentional infliction of emotional distress.

In Florida, the EEOC announced a settlement against the Hurricane Grill and Wings Restaurant in West Palm Beach for $200,000. The lawsuit alleged that the company allowed a class of female servers to be sexually harassed by a customer, who happened to be a Palm Beach County Sheriff's Deputy. The suit alleged that the servers were "frequently grabbed on their breasts and buttocks and humiliated by sexual innuendo, as well as direct invitations to join the harasser and his wife in menage a trois." The EEOC issued a press release, saying, in part, that "A high percentage of sexual harassment charges are filed by women in the restaurant industry and this decree will serve to protect the rights of a particularly vulnerable segment of the work force."

Practice pointer. As pointed out by the EEOC, the restaurant industry has a large number of complaints concerning sexual harassment, as well as FLSA problems. Any employer in this industry must be vigilant to make sure the employees are treated properly and paid according to the law.

Title VII: Religious Discrimination. The EEOC announced a $125,000 settlement with the Menorah House, a nursing and rehabilitation facility in Boca Raton, Florida. For at least 8 years, the Menorah House had accommodated 2 Seventh-Day Adventists by allowing them to not work on Saturdays. Management instituted a policy that required all employees to work on Saturday, regardless of their religious beliefs. The EEOC filed suit on behalf of the 2 employees after they were fired because their religion prohibited them from working on Saturdays. According to the EEOC press release, Title VII "prohibits religious discrimination and requires employers to make reasonable accommodations to employees' sincerely held religious beliefs so long as this does not poses an undue hardship."

Workers' Compensation. The Alabama Court of Civil Appeals issued a decision last week involving the right of a workers' compensation carrier to recover funds from a third party tortfeasor. Mongham was injured at work, and recovered a "large amount" in workers compensation benefits. He also sued a number of third parties, alleging that they caused the accident, and entered into settlement agreements with the third parties, in which they agreed to pay a lump sum and purchased an annuity to pay Mongham over time. The employer asked the trial court to recover from the settlement funds the amount it paid in workers' compensation benefits. The trial court ordered that they employer receive an initial lump sum payment, and a portion of the annuity payments until it was fully reimbursed. On appeal, the Alabama Court of Civil Appeals found that an employer's right to recover from third party funds has priority over the employee's right to recover those funds, and order that the employer should receive the entire monthly payments until it was fully reimbursed.

11th Circuit Injunction of Sections 27 and 30 of HB 56

Daniel Burnick — Fri, 09 Mar 2012 09:51:55 -0600

As reported yesterday, the 11th Circuit enjoined Sections 27 and 30 of HB 56. After reading the very short Order, there is not much more to add. The Order, just barely over one page long, has no reasoning or opinion other than ":We conclude that the plaintiffs in these matters have met their burden as to"...these 2 sections.

Section 27 provides in substance that an Alabama court cannot enforce the terms of a contract between a party and an alien unlawfully present in the US if the party had direct or constructive knowledge that the person was in the US unlawfully at the time the contract was entered into, and the contract required the alien to remain unlawfully in the US for more than 24 hours after the time the contract was entered into or performance could not reasonably be expected to occur without such remaining. This section does NOT apply to a contract for lodging for one night, the purchase of food to be consumed by the alien, a contract for medical services or a contract for transportation if it is intended to facilitate the alien's return to his or her country of origin.

Section 30 prohibits an alien not lawfully present in the US, or a person acting on their behalf, from entering or attempting to enter into a business transaction with the state or a political subdivision of the state. Any person entering into a business transaction with the state or political subdivision of the state shall be required to demonstrate his/her US citizenship, or if an alien, their lawful presence in the US. A violation of this section is a class C felony. The court interprets Section 30 as prohibiting unlawfully present aliens from contracting with state and local governments, applying for or renewing drivers' licenses and identification cards, and applying for and renewing motor vehicle license plates.

Practice pointer. It looks like all the paperwork that has been distributed by state or local agencies concerning compliance with the law may be unnecessary at this time. I know that many businesses have completed affidavits of compliance pursuant to Section 30. Remember, that the E-Verify provisions of HB 56 have not been challenged and are still in place: all businesses contracting with state or other public entities were required to use E-Verify as of January 1, 2012, and ALL BUSINESSES must use E-Verify for new employees on or before April 1, 2012.

11th Circuit Blocks 2 More Provisions of HB 56

Daniel Burnick — Thu, 08 Mar 2012 16:02:08 -0600

Although the 11th Circuit said it would wait until after the U.S. Supreme Court ruled on Arizona's immigration law to rule on HB56, the Court issued an order blocking 2 more provisions of HB56. According to Al.com the Court blocked the implementation of the sections barring "residents from knowingly entering into contracts with illegal immigrants and ban illegal immigrants from entering business transactions with state and local governments." I have not yet read the opinion, but will give more details once I can review it.

Social Media Horror Stories

Daniel Burnick — Wed, 07 Mar 2012 14:46:32 -0600

Last week, I gave a presentation for Sterling Educational Services in Huntsville. In attendance were attorneys and HR professionals. The topic was Social Media and the impact it has in the workplace. During my research and preparation, I came across a number of interesting items. Among them are the following:

Who is Brian Downing? The Alabama fan who was arrested after a video of him went viral. The video was of him in a Krystals restaurant in New Orleans, following the BCS game, rubbing his genitalia on the face of a man passed out in the Krystals. He was charged with Sexual Assault. His employer, Hibbett Sports, terminated his employment as a result of his actions.

Who is Roland Martin? He is a CNN commentator, who, while watching the Super Bowl, saw the underwear commercial starring David Beckham, and tweeted, "If a dude at your Super Bowl party is hyped about David Beckham's H&M underwear ad, smack the ish out of him!#superbowl." Numerous complaints were made, including those by gay advocacy groups, claiming that the tweet was advocating violence against homosexuals. Martin was suspended from CNN for this tweet.

Who is Paul Withee? He was a middle school math and science teacher and high school football coach in Maine. He posted a nude photo of himself on Facebook: he says he intended to send the photo to a friend, but mistakenly made it public. It was only up for 10 minutes, but was seen by a parent who alerted school administrators. He was fired.

During the Daytona 500, Brad Keselowski was seen tweeting on the track during a 2 hour race stoppage as the result of an accident. He gained over 140,000 new followers as a result of the free publicity.

At a recent Manpower webinar, attendees were asked to text the one word that describes social media in today's workplace. Of 123 responses, the top 10, including ties, were:

Necessary (35)

Distracting (17)

Dangerous (10)

Helpful (8)

Scary (8)

Growing (6)

Wasteful (6)

Annoying (5)

Complicated (5)

Essential (5)

Overwhelming (5)

Time-consuming (5)

Useful (5)

Valuable (5)

It is interesting to note the almost equal split of positive and negative descriptions. It is here to stay, and employers must learn to make the most of it.

The New York Daily News recently published the results of a survey conducted by 11Mark. The survey showed that 75% of Americans take their cell phones into the bathroom, 87% of Android users admitted to talking, texting or surfing the web while in the bathroom, 75% of BlackBerry users answered the phone, while 48% made a call, and 52% of iPhone users participated in social networking and 57% used an app. Of those born between 1977 and 1993, 91% admitted using their phones while seated in a bathroom stall.

FaceBook has over 845 million users worldwide. Google+ believes it reached 100 million last month, and the numbers keep going up. Employers need a social media policy that is in compliance with state and federal laws, rules and regulations, including being compliant with the National Labor Relations Act (NLRA) which protects concerted activity concerning the terms and conditions of employment. Over the past year, the National Labor Relations Board (NLRB) has been aggressively pursuing companies that discipline, including terminating, employees for social media activity that they deem to be protected by the NLRA.

NLRB's Poster Lawful, but Court Strikes Portions of it and the EEOC Speaks out on USERRA and ADA

Daniel Burnick — Mon, 05 Mar 2012 11:06:09 -0600

I have previously posted about the requirements of the the Poster required by the NLRB, entitled "Notification of Employee Rights". After various delays, the effective date was moved to April 30, 2012. The Rule requires that all employers covered by the NLRA post, in a conspicuous place, a notice informing employees of their right to organize and provide contact information for the NLRB. Last week, Judge Amy Berman Jackson, of the U.S. District Court for the District of Columbia, upheld the requirement that the poster be put up in the workplace, but struck 2 sections of the required posting: that the failure to post is an unfair labor practice and that the failure to post tolls the statute of limitations against employers who fail to post. The decision, however, held that although the "Board cannot make a blanket advance determination that a failure to post will always constitute an unfair labor practice", it can determine on a case by case basis that an employers failure to post can constitute an unfair labor practice. This case is likely to be appealed, and the NLRB, with it's current liberal majority, will probably pursue action against employers who fail to post the notice.

Practice pointer. The requirement to post the notice still stands: it must be posted on or before April 30th.

EEOC Issues New Guidelines for Veterans with Disabilities. Last week, the EEOC issued 2 revised publications on the employment of veterans with disabilities. The Guide for Employers explains how protections for veterans with service-connected disabilities differ under the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA), and how employers can prevent disability-based discrimination and provide reasonable accommodations. The Guide for Wounded Veterans answers questions that veterans with service-related disabilities may have about the protections they are entitled to when they seek to return to their former jobs or look for civilian jobs. The publication also explains the kinds of accommodations that may be necessary to help veterans with disabilities obtain and successfully maintain employment. Traumatic Brain Injuries (TBI) and Post-Traumatic Stress Disorder (PTSD) are among the disabilities that employers will be expected to reasonably accommodate, if possible.

Practice Pointer. The EEOC remains very active, and will be involved in situations involving disabled veterans returning to the private workforce. Approximately 3 million veterans have returned over the last 10 years, and it is expected that another million will return over the next 5 years as troops are withdrawn from the Middle East and Department of Defense funding is reduced. With a 12 percent unemployment rate for post 9/11 veterans, I expect the EEOC to be very aggressive in this area. Any returning disabled veterans (Thank you for your service to the US), and any employers who have disabled veterans apply for jobs should read these publications.

Immigration Update: 11th Circuit says it will not rule until after Supreme Court Decision on Arizona law.

Daniel Burnick — Thu, 01 Mar 2012 12:40:40 -0600

According to AL.com, the 11th Circuit has stated that it will not rule on Alabama HB 56 or Georgia's immigration law until after the United States Supreme Court rules on Arizona's immigration law. Oral argument before the Supreme Court is scheduled for April 25, and I anticipate that the decision will be released some time this summer, probably in June.