I enjoyed chatting with Ron Sykstus on his “Next Lawyer Up” podcast.
My friend, Ron Sykstus, recently invited me to participate in his Next Lawyer Up podcast. Ron is an awesome attorney who is a partner with the Bond & Botes law firm. Next Lawyer Up has 130 podcast episodes featuring attorneys across the Southeast. The podcast is a “show where lawyers talk about lawyering and how they got into law.”
In addition to the practice of law, the podcast touches on news, politics, career building and philanthropy. Notable lawyers from around Alabama have been guests, including former Lt. Governor Bill Baxley, former Lt. Governor and prominent trial lawyer Jere Beasley, and U.S. Senator Doug Jones.
The NLRB’s recent decision in Stericycle is causing issues for employers.
For the last three weeks, employment lawyers have been in a tizzy about the NLRB’s decision in Stericycle, Inc. Here’s a link that will download a .pdf of the decision for you: Stericycle decision. Now, it might be an exaggeration for me to say that the NLRB “hates” handbooks, but after Stericycle handbooks are going to be subject to closer scrutiny.
What does that mean? Why does the NLRB even care about what’s in your handbook? Well, the National Labor Relations Board enforces the National Labor Relations Act. And, the NLRA protects the right of workers to engage in “concerted activity” to improve their pay or working conditions. It also prohibits employers from interfering with an employee’s attempt to exercise those rights.
In Stericycle, the NLRB decided that some employees might read employment policies and be afraid of engaging in concerted activity — for fear of violating the handbook and getting fired. So, the NLRB created a new rule to limit the impact of employment policies and handbooks. Under the new rule, a workplace policy is presumed to be unlawful if it “could” be interpreted to limit employee rights. Additionally, the NLRB is going to review policies based on the perception of a so-called “economically dependent” employee who might be fearful of engaging in protected activity.
So, what does this mean for employers? Should every employer conduct an exhaustive analysis of its handbook and bring all policies in compliance with the Stericycle standard? As most lawyers will tell you, the answer is: “It depends.”
In large part, the answer depends on whether your employees are likely to accuse you of an Unfair Labor Practice. A policy that violates Stericycle is an Unfair Labor Practice under the NLRA. The NLRB is responsible for stopping Unfair Labor Practices. But, based on my experience, the odds are very low that an Unfair Labor Practice allegation will be filed against most employers in Alabama. Industries that historically interact with labor unions (coal mines and auto manufacturers come to mind) have a greater chance of an allegation. If the NLRB finds that you’ve engaged in an Unfair Labor Practice, they can impose a number of remedies, including rescission of the policy, a cease-and-desist order and a requirement to post notices around the workplace.
As an employer, your response to the Stericycle decision depends on your risk tolerance. Are you willing to do whatever it takes to fully comply with all aspects of federal employment and labor law? Or, do you recognize that full compliance is difficult and costly? Do you just want to make a good faith effort at compliance?
These are questions that each employer has to answer for itself. A good employment lawyer can help you review your risk tolerance and develop the best plan for your business.
The PWFA gives new protections to pregnant employees.
The Pregnant Workers Fairness Act imposes new requirements on employers and how they treat their pregnant employees. On Tuesday, the EEOC started accepting charges for alleged violations of the PWFA. So, employers need to know what the Act requires and how to comply.
It’s important to know where the PWFA sits in relation to other employment laws. For example, the Pregnancy Discrimination Act requires employers to treat employees affected by pregnancy, childbirth, or related medical conditions the same as other similar situated employees. Additionally, the Americans with Disabilities Act requires accommodation for certain impairments that are related to pregnancy — but many pregnancy-related conditions are not considered disabilities under the ADA.
The PWFA is therefore similar to the ADA but goes a step further — requiring employers to provide reasonable accommodations for “the known limitations related to pregnancy, childbirth and related medical conditions of a qualified employee.” But, accommodation is not required if an employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business. The EEOC lists the following examples of accommodations for pregnant workers:
the ability to sit or drink water;
receive closer parking;
have flexible hours;
receive appropriately sized uniforms and safety apparel;
receive additional break time to use the bathroom, eat, and rest;
take leave or time off to recover from childbirth; and,
be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.
In addition to requiring accommodations, the PWFA imposes restrictions on employers. Employers cannot:
Require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer;
Deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
Interfere with any individual’s rights under the PWFA.
This is a new law with minimal guidance. So, when addressing the needs of pregnant employees, employers should proceed cautiously.
P.S.: Employers need to update their EEO posters to reflect the PWFA requirements. Here’s the latest version from the EEOC: EEOC: Know Your Rights
After a new decision from the Supreme Court, employers should go slowly when deciding whether to accommodate an employee’s religious beliefs.
Today, the Supreme Court increased the burden on employers who receive a request to accommodate an employee’s religious beliefs. Before today, an employer was not required to provide a religious accommodation if it would impose “more than a de minimis burden” on the employer. After today, employers will be confronted with a case-by-case analysis of whether an accommodation will result in “substantial increased costs.”
In the last few years, I’ve provided a lot of advice to employers on accommodating employees’ religious beliefs. First, I received a lot of questions during COVID about employees’ religious objections to mask mandates or vaccine requirements. Second, I received many questions about accommodating Saturday Sabbath observers who cannot work from sundown Friday through Sundown Saturday.
An employee’s observance of the Sabbath on Saturday can sometimes conflict with an employer’s need to schedule work on a Saturday. As a result, I often walked my clients through the analysis of whether they were required to give time-off to Saturday Sabbath observers. After all, Title VII of the Civil Rights Act prohibits discriminating against employees because of their religious beliefs. In 2018, I wrote a blog on accommodations for Sabbath observers that can be found at: this link (Sabbath Accommodations).
Today, the United States Supreme Court disrupted almost every employment lawyer’s understanding of the analysis for accommodating religious beliefs. See Groff v. DeJoy, No. 22-174, 2023 WL 4239256 (Jun. 29, 2023). The Groff decision focused on Title VII’s requirement that an employer must “reasonably accommodate an employee’s or prospective employee’s religious observance or practice” unless the employer is “unable” to do so “without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 200oe(j)
In short, accommodation is required unless the accommodation would impose an undue hardship on the employer. Prior to today, most courts and lawyers interpreting Supreme Court precedent understood that that proving “undue hardship” was a fairly easy task. If an accommodation would require “more than a de minimis cost,” it was an undue burden.
In Groff, the Supreme Court jettisoned the “de minimis” standard and replaced it with a more-difficult burden for employers. “[A]n employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.” Groff, 2023 WL 4239256 at *11 (emphasis added). Unfortunately, the Court provided very little guidance for applying its “substantial increased costs” tests. But, we know two things:
There is no one-size-fits-all test. Instead, the Supreme Court encouraged lower courts to “apply the test in a manner that takes into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, ‘size and operating cost of [an] employer.'” Groff, 2023 WL 4239256 at *11. In other words, large employers will face more onerous burdens for accommodating because they should be able to afford it.
Co-employee morale/disgruntlement is not a factor to consider in the undue burden analysis. “[A] hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered ‘undue.'” Groff, 2023 WL 4239256 at *12
This was a unanimous opinion from the Supreme Court. Interestingly, two of the more-liberal Justices (Sotomayor and Jackson) filed a concurring opinion noting that “undue hardship on the conduct of a business may include undue hardship on the business’s employees.” Groff, 2023 WL 4239256 at *14. Thus, while employee disgruntlement might not be an acceptable consideration, these two Justices might be willing to consider other impacts on co-employees as part of the undue hardship analysis.
This is just the beginning of a new test. In Alabama, the Eleventh Circuit Court of Appeals and our United States District Courts will have to apply the new “undue burden” cases that come before them. As a result, employers should tread carefully when considering religious accommodation requests.
Justice may be blind. But, there is no tolling of the statute of limitations when an FLSA case is filed in the wrong court.
Last week, the Eleventh Circuit Court of Appeals found that filing an Fair Labor Standards Act law suit in the wrong court does not lead to tolling (or halting) the statute of limitations in the correct court. See Wright v. Waste Pro USA, Inc., No. 22-12261, 2023 WL 395927 (11th Cir. Jun. 13, 2023).
Anthony Wright worked in Florida for Waste Pro of Florida, Inc., a subsidiary of Waste Pro USA, Inc. (“Waste Pro”). In October 2017, he joined with other employees to sue Waste Pro and its Florida, North Carolina and South Carolina subsidiaries in the United States District Court for the District of South Carolina. In July 2019, the South Carolina court dismissed Waste Pro and Waste Pro of Florida without prejudice because it did not have personal jurisdiction over those companies — meaning they weren’t sufficiently tied to South Carolina to be sued there.
In August 2019, Wright re-filed his lawsuit in Florida. But, the FLSA has two to three year statute of limitations — depending on whether the FLSA violation was willful. As a result, Wright’s lawsuit in Florida was untimely. So, he argued that the statute of limitations was tolled while his prior lawsuit was pending in South Carolina.
In short, the Eleventh Circuit was having none of it. Generally, the filing of a lawsuit that is later dismissed without prejudice does not toll the statute of limitations. See Justice v. United States, 6 F.3d 1474, 1478-79 (11th Cir. 1993). As a result, Wright was forced to ask the Eleventh Circuit to create a special tolling rule for FLSA cases. The Court declined to create a special rule and further found that Wright was not entitled to generalized “equitable tolling” because he could have taken other actions to preserve his claim before the statute ran.
This is a good decision for employers because it brings finality and clarity to a troublesome statute of limitations issue. If an employer gets sued for violating the Fair Labor Standards Act, the first thing they should do is find the last possible date that an employee could have been paid improperly. Many times, the statute of limitations will have expired on some or all of an employee’s claims.
OSHA could not issue a citation for violating the “general duty” clause when it also promulgated a specific safety regulation for forklifts.
The Occupational Safety and Health Administration has been stepping-up its enforcement efforts recently. Anecdotally, I’m seeing and hearing about more workplace inspections and more citations from OSHA inspectors. Recently, the Eleventh Circuit Court of Appeals issued an opinion that will help employers defend against OSHA citations. See Chewy, Inc. v. U.S. Department of Labor, No. 22-11626, 2023 WL 3713222 (11th Cir. May 30, 2023).
One of OSHA’s favorite weapons is the “general duty” clause. Employers have a “general duty” to provide employees with a safe workplace. See 29 U.S.C. § 654(a)(1). An employer fails this general duty when it: (1) fails to render the work place free of a hazard; (2) the hazard was recognized; (3) the hazard caused, or was likely to cause, death or serious physical harm; and, (4) the hazard was preventable. Ga. Elec. Co. v. Marshall, 595 F.2d 309, 320-21 (5th Cir. 1979). So, if an employee is injured at work, and an employer does not violate a specific safety standard, OSHA will frequently issue a citation for violation of the “general duty” clause.
You would logically think that OSHA would not issue a “general duty” citation if an employer complied with a specific OSHA safety standard. Not so fast, my friend. In the Chewy case, the employer complied with a specific safety standard for forklift safety. Even so, OSHA decided to issue a citation for an alleged violation of the “general duty” clause.
The Chewy case involved “under-ride” accidents which occur when the chassis of a forklift is short enough to can pass under warehouse shelves without colliding with them — such that the driver’s body collides with the shelves. OSHA’s specific safety standards require forklift operators to receive safety training, look in the direction of travel, keep a clear view of the path of travel and maintain a safe speed. See 29 C.F.R. § 1910.178.
Chewy, Inc. complied with those standards but there were still two under-ride accidents within six months. OSHA cited Chewy for violating the “general duty” clause and an Administrative Law Judge upheld that citation.
The Eleventh Circuit reversed. The Court relied upon Department of Labor regulations, an OSHA administrative decision and prior case law to find that “compliance with an applicable safety standard bars general duty liability.” Chewy, Inc., 2023 WL 3713222 at *2. OSHA tried to argue that its specific forklift safety standard did not cover the danger of under-rides. But, the Eleventh Circuit rejected that argument. Because Chewy complied with OSHA’s forklift safety standards, it could not be cited for a “general duty” violation.
This is an important victory for employers. Obviously, employers need to comply with OSHA safety standards. But, they also need to be confident that they cannot be cited if they comply with those standards. If OSHA tries to issue a “general duty” citation to your business, double-check to see if you have complied with any applicable specific safety standards. If so, you may have an additional defense to the citation.
An employee who claims his beard is part of a sincerely held religious belief can be protected by Title VII — even if he doesn’t belong to a formal religious denomination.
Employees who do not belong to a formal religious denomination can still have sincerely held religious beliefs protected by Title VII of the Civil Rights Act of 1964.
I just received a press release from the EEOC, which is suing an employer who refused to allow an employee to wear a beard. The employee asked for a religious accommodation but admitted he did not belong to formal religious denomination. Nevertheless, he claimed to hold a Christian belief that men must wear beards. The employer denied the request for accommodation because the employee was unable to provide additional substantiation of his beliefs or a supporting statement from a certified or documented religious leader.
Many times, employers will think that an employee is “inventing” a religious belief to avoid work requirements. But, refusing to take religious accommodation claims seriously can be dangerous. That’s because the EEOC takes the position that “religion” is very broadly defined for purposes of Title VII. According the EEOC: “The presence of a deity or deities is not necessary for a religion to receive protection under Title VII. Religious beliefs can include unique beliefs held by a few or even one individual; however, mere personal preferences are not religious beliefs. ”
Obviously, I don’t know all of the facts of this case. And, the EEOC can be selective in the facts that it includes in a press release. But, this announcement should help employers understand that they need to take all religious accommodation requests seriously.
Efforts by employers to avoid overtime pay can sometimes backfire.
Employers devise lot of strategies to avoid overtime. After all, overtime can be costly. I’m not a math major, but time-and-a-half is fifty percent more expensive. Last week, an employer in Florida learned that its strategy to avoid overtime might violate the Fair Labor Standards Act. See Thompson v. Regions Security Svcs., Inc., No. 21-1094, 2023 WL 3515222 (11th Cir. May 18, 2203).
David Thompson worked as a security guard for Regions Security. He generally worked 40 hours per week and was paid $13.00 per hour. In January 2019, however, Regions began to schedule him for approximately 20 hours of overtime per week — with an overtime rate of $19.50 per hour. On July 22, 2019, Regions reduced Thompson’s hourly rate to $11.15 per hour — which equated to an overtime rate of $16.73 per hour. A year later, Regions returned Thompson to a 40-hour-per-week schedule and raised his pay to $13.00 per hour.
Thompson sued and claimed Regions artificially lowered his pay to avoid paying $19.50 per hour in overtime. The trial court dismissed Thompson’s claim, presumably because Regions did what the language of the FLSA requires: it paid time-and-a-half. The Eleventh Circuit Court of Appeals reversed that decision.
The dispute centered on determining Thompson’s “regular rate” of pay — because the FLSA requires employers to pay time-and-a-half for the “regular rate” in a work week. Thompson claimed his regular rate was $13.00, while Regions said it was $11.15 during the year he was earning plenty of overtime. The Eleventh Circuit relied upon guidance from the United States Department of Labor to find that employers are not allowed to reduce an employee’s hourly rate to avoid overtime:
That prohibition on lowering an employee’s regular rate and increasing the hours in his workweek prevents an employer from circumventing the FLSA’s overtime requirements. As 29 C.F.R. § 778.327 demonstrates, this non-circumvention rule prevents an employer from playing with an employee’s hours and rates to effectively avoid paying time-and-a-half for an employee’s overtime hours. Otherwise, an employer could use “simple arithmetic” to lower an employee’s rate and increase his hours so that he could never earn time-and-a-half pay—“no matter how many hours he worked.” Id. § 778.327(a).
Thompson, 2023 WL 3515222 at *5.
Importantly, the Eleventh Circuit established this rule in the context of a motion to dismiss. Regions Security argued that it did not lower Thompson’s rate of pay to avoid overtime. And, as the case progresses, it may be able to prove that fact-based defense. But, because this was the beginning of the case, Thompson will be given the opportunity to show that his FLSA rights were violated.
Generally, an employee must request leave of some kind before an employer is required to provide notice of FMLA rights.
The Family and Medical Leave Act imposes duties on employers to actively engage with employees who need FMLA benefits. In fact, employers must provide an employee with notice of their FMLA rights whenever the employer “acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason.” 29 C.F.R. § 825.300(b)(1). Last week, the Eleventh Circuit Court of Appeals clarified employers’ obligations, finding that the duty to provide notice of FMLA rights only arises if an employee asks for leave of some kind. Graves v. Brandstar, Inc., No. 21-13469, 2023 WL 3316741 (11th Cir. May 9, 2021).
Jessica Graves lived in Florida and her father lived in Pennsylvania. After Ms. Graves’s father underwent emergency brain surgery, she asked her employer for “ongoing flexibility” to prepare her home as she moved him to Florida. But, she never asked for time-off to prepare her home. Ms. Graves’s employer never provided notice of her rights under the FMLA and later terminated her employment under circumstances that were potentially linked to her care for her father.
Ms. Graves sued and claimed her employer violated the FMLA by failing to provide her with notice of her right to FMLA leave. But, the Eleventh Circuit found that an employer has no obligation to provide notice of FMLA rights unless the employee asks for leave of some sort. Graves, 2023 WL 3316741 at *4. “The Family and Medical Leave Act requires, at the very least, that an employee actually seek leave—of some sort—to trigger an employer’s obligation to give eligibility and rights-and-responsibilities notice.” Id. (emphasis in original). Put another way, “the employee must ask for time off—i.e., leave—in order to prompt the employer’s notice obligations.” Id. In this case, Ms. Graves never asked for time off from work. Therefore, the Court found no violation of the FMLA.
There is one crucial wrinkle to the Graves decision. The Court suggested that an employer cannot rely upon an employee’s failure to request leave if it acquires knowledge of the employee’s need for leave in some other manner. But, in the Graves case, the employer had no such knowledge.
My general suggestion to employers is: whenever there’s a question about whether an employee needs FMLA leave, just give them the standard FMLA notices. I would be cautious about limiting distribution of FMLA materials based upon an employee’s failure to expressly request “leave.” But, the Graves case provides an additional potential defense to employers who fail to give FMLA notices to their employees.
If a federal judge asks you to explain a “misrepresentation” to the Court, you probably shouldn’t say the judge has been “overly literal” and “hasty.”
Here’s a cautionary tale for lawyers: Don’t tell a federal judge that a fact is “undisputed” when it is in dispute. And, don’t double-down on calling it undisputed when the Judge holds a hearing to ask you about it. See McClinton v. Capstone Logistics, LLC, No. 2:20-cv-543-AMM, 2023 WL 3274937 (N.D. Ala. May 4, 2023).
Richard McClinton sued Capstone Logistics claiming that he was discriminatorily fired in violation of federal law. Capstone claimed there was no discrimination and that McLinton was fired falsifying a Corrective Action Form. McLinton testified at deposition that he did not falsify the form. McLinton’s former supervisor said that McLinton did falsify the form. This is the quintessential dispute of material fact which is submitted to a jury for resolution.
Nevertheless, Capstone’s lawyers filed a summary judgment brief asking for dismissal of the case and repeatedly claiming it was undisputed that McLinton falsified the form. McLinton responded and demonstrated that this crucial fact was in dispute. “On reply, Capstone’s counsel did not withdraw but rather persisted in their misrepresentation that it was undisputed that Mr. McLinton doctored the Corrective Action Notice.” McLinton, 2023 WL 3274937 at *3.
United States District Court Judge Anna M. Manasco denied Capstone’s motion for summary judgment and scheduled a hearing for its lawyers to explain “why this misrepresentation does not violate their duty of candor to the court and Federal Rule of Civil Procedure 11(b)(3).” McLinton, 2023 WL 3274937 at *3.
Most lawyers would come to the hearing hat-in-hand and beg for forgiveness. Capstone’s lawyer took a different approach. He claimed that the summary judgment argument was merely “unclear.” Judge Manasco told the attorney that his argument was “nonresponsive to the Court’s concern about misrepresentation.” McLinton, 2023 WL 3274937 at *4. Nevertheless, counsel persisted in calling his summary judgment brief “unclear.” Id. Moreover, he persisted with his argument “[e]ven after the court explained that Capstone’s pleading had not been merely ‘unclear,’ but had been ‘the opposite of … true.” Id.
At the conclusion of the hearing, Judge Manasco ordered counsel to “brief the issue of appropriate sanctions.” McLinton, 2023 WL 3274937 at *5. At this point, most lawyers would roll over and play dead. But, Capstone’s lawyers decided to challenge the judge. They claimed: (1) she was acting “in contravention of Rule 11”; (2) their filings “accurately stated the undisputed facts”; and, (3) sanctions weren’t appropriate because Judge Manasco wasn’t actually misled by any representation. Id. To make matters worse, they said that Judge Manasco had applied an “overly literal” and “hasty” reading of their summary judgment brief. Id.
Unsurprisingly, Judge Manasco was not convinced to withhold sanctions. Instead she found:
Based on Capstone’s post-hearing brief, the court finds that Capstone’s counsel did not inadvertently, overzealously, or even recklessly stumble into a regrettable mistake—after they deliberately misrepresented a fact, they later repeated that misrepresentation, and still later were not discouraged or deterred by the court’s inquiry, nor by the clearly stated risk of sanction.
McLinton, 2023 WL 3274937 at *5.
Ouch.
Judge Mansaco issued the sanction of admonishment with circulation. “The admonishment is to not make material misrepresentations to a tribunal.” McLinton, 2023 WL 3274937 at *8. She also ordered that the admonishment must be circulated to every attorney in Capstone’s law firm, which is composed of more than 500 lawyers in 36 offices across the United States.
It’s easy for me to Monday Morning Quarterback this case. I don’t know all of the facts or the strategies that went into Capstone’s arguments. But, based on Judge Manasco’s version of events, I probably would have adopted a different strategy.
It should also be noted that Judge Manasco was also unhappy with Mr. McClinton’s lawyer. In a separate opinion she sanctioned him with a public reprimand for willfully failing to comply with her orders regarding length, formatting and filing of briefs. McLinton v. Capstone Logistics, LLC, No. 2:20-cv-543-AMM, 2023 WL 3274937 (N.D. Ala. May 4, 2023).
