Does a Termination to Avoid “Racial Tension” Violate Title VII?

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Arguably, a termination to avoid racial tension could violate Title VII of the Civil Rights Act of 1964.

This is not a post about race relations in America.  Instead, this post is focused on the following issue:  What happens if an employer terminates an employee to avoid racial tension caused by  that employee’s conduct?

That was one of the underlying issues in Burton v. Gwinnett County School Dist., No. 18-10904, 2018 WL 6259631 (11th Cir. Nov. 28, 2018).  Lauri Burton was a Principal at B.B. Harris Elementary School in the Gwinnett County School District.  She is white.  She and two African-American Assistant Principals removed a disruptive African-American student to a conference room.  The student then repeatedly slammed a chair against a wall, causing a small indentation.  When Burton met with the student’s family, she lied and claimed that the student made a hole in the wall.  After that meeting, Burton ordered one of the Assistant Principals to take a hammer and make a hole in the wall.  She then e-mailed pictures to the student’s family.

When Burton’s actions were discovered, she was terminated from employment by the system’s Superintendent.  After she was terminated, an Associate Superintendent told Burton:  “This could look like you framed children.  This is a little black boy.  This is two black APs.”  Additionally, the School District submitted a report to the Georgia Professional Standards Commission.  In the course of making that report, the District’s Executive Director of Human Resources and Staffing made statements to an investigator indicating that concerns about race relations in the community were a factor.

Burton sued under Title VII of the Civil Rights Act of 1964 claiming that her race was a factor in termination of her employment. Her lawsuit was a “mixed motive” claim.  Burton effectively acknowledged that her actions were improper but argued that race was also a factor in the termination decision.  Without any discussion, the Eleventh Circuit appeared to assume that Burton might be able to succeed on a mixed motive theory — if she could prove that avoiding racial tension motivated her termination.

But, the court sidestepped the issue by finding that Burton provided no evidence regarding the Superintendent’s motives.  The Superintendent was the decision-maker, and the Superintendent denied that race was a factor.  Burton’s evidence consisted solely of statements made by non-decision-makers after the termination decision.  Thus, the court found that she could not meet her burden of proving that race motivated her termination.

But, what if the Superintendent made the statements?  What if an admitted reason for termination was to avoid the potential for racial tension in the community?  Could Burton have succeeded in her race discrimination claim?

I did some quick, but by no means exhaustive, research and I could not find any other cases discussing termination of employees as part of an effort to avoid racial tension.  Title VII expressly prohibits termination “because of” an employee’s race.  See 42 U.S.C. § 2000e-2.  And, in a mixed-motive case, the employee only must show that race was “a motivating factor” for the employer in making the employment decision.  At least one Eleventh Circuit case holds that a employee can “succeed on a mixed-motive claim if she demonstrates that ‘discriminatory input,’ such as [race or gender] bias, factored into the board’s ‘decisional process.'” Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1241 (11th Cir. 2016)

In short, I think that an employee like Ms. Burton could at least make an argument that Title VII forbids termination where a motivating factor is avoiding racial tension.  Under that argument, Ms. Burton would show that race factored into her employer’s decisional process.  A counter-argument would stress that racial bias is the deciding factor — not merely the presence of race.  While race relations in the workplace or the community were considered, the employer will argue that it was not biased against Ms. Burton because of the color of her skin.  Instead, it acted to avoid discord.

I wouldn’t want to be the Judge deciding that case, and I wouldn’t want to be the employer being sued for such a claim.  Therefore, my advice is to avoid even the suggestion that race plays any role factor whatsoever in an employment decision.

OSHA’s Inspection Powers Have Limits

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OSHA inspections have limits.

The United States Department of Labor’s Occupational Safety and Health Administration (“OSHA”) has become more aggressive in recent years.  OSHA inspectors frequently seek to push the limits of their right to inspect employer premises.  A recent case from the Eleventh Circuit Court of Appeals imposes some limits on those inspection rights.  See USA v. Mar-Jac Poultry, Inc., No. 16-17745, 2018 WL 4896339 (11th Cir. Oct. 9, 2018).

A Mar-Jac employee was severely burned on February 3, 2016 when he attempted to repair an electrical panel using a non-insulated screwdriver.  Mar-Jac reported that accident to OSHA, and inspectors arrived at Mar-Jac’s facility on February 8, 2016.  The inspectors asked to inspect not only the hazards involved in the accident, but also to conduct a comprehensive inspection of the entire facility.  When Mar-Jac refused that comprehensive inspection, OSHA asked a federal court to issue a warrant permitting inspection of the facility.  When Mar-Jac received the warrant, it filed an emergency motion to quash (or stop) the warrant and inspection.  The court reviewing the motion to quash agreed with Mar-Jac and prevented the expanded inspection.  OSHA appealed to the Eleventh Circuit.

Importantly, the Mar-Jac case involved an “unprogrammed” inspection by OSHA.  OSHA has created “emphasis programs” in industries that pose a high risk to workers, and randomly inspects facilities under those programs.  If Mar-Jac involved a random, programmed inspection, the result would probably have been different.

“The scope of an unprogrammed inspection must bear an appropriate relationship to the violation alleged by the evidence.”  Mar-Jac, 2018 WL 4896339 at * 4.  “When nothing more is offered than a specific complaint relating to a localized condition, probable cause exists for a search to determine only whether the complaint is valid.”  Id.

Nevertheless, the Eleventh Circuit recognized that an expanded, full-facility inspection may be warranted in some circumstances:  “it is conceivable that a specific violation plus a past pattern of violations may be probable cause for a full scope inspection.  In addition, a specific complaint may allege a violation which permeates the workplace so that a full scope inspection is reasonably related to the complaint.”

OSHA tried to argue that a pattern of violations existed which supported its request for a full-facility inspection.  In particular, it relied upon Mar-Jac’s OSHA 300 logs to argue that the facility had a pattern of OSHA violations.  But, OSHA 300 logs do not necessarily record OSHA “violations.”  Instead, they merely contain a listing of work-related injuries and illnesses.   And, the Eleventh Circuit stressed that the mere existence of workplace hazards would not support a warrant:  “The existence of a ‘hazard’ does not necessarily establish the existence of a ‘violation,’ and it is a ‘violation’ which must must be established by reasonable suspicion in the application [for a full-facility inspection warrant].”

Ultimately, the Eleventh Circuit concluded that OSHA did not provide enough evidence of OSHA violatoins to justify a full scope inspection of the facility.  And, that is really the lesson of Mar-Jac.  If an employer operates a facility that is generally free of OSHA violations, it may be possible for that employer to resist a request by OSHA for an unprogrammed full-facility inspection.

How to Pay “By the Hour” Without Losing the Overtime Exemption

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Employees can be paid “by the hour” and still be exempt from overtime under the FLSA

Many employers believe that all salaried employees are exempt from overtime:  “I pay them a salary.  So, I don’t owe them overtime.”  That belief is dangerous.  The salary requirement is only one part of the FLSA’s overtime exemption.  The employee must also fit within the FLSA’s categories of Executive, Administrative or Professional (“EAP”) employees.   The EAP analysis can be extensive, and that analysis is outside the scope of this blog post.  For our purposes, assume that you have an employee who is an Executive, Administrative or Professional employee, and they are promised an annual salary of $23,660 or more.  It may be possible to compute that employee’s salary “by the hour” without losing the overtime exemption.

On November 8, 2018 the U.S. Department of Labor’s Wage and Hour Division (“DOL”) published an opinion letter that provides some guidance.  Here is a link to that opinion letter: FLSA2018-25.

The “salary basis” test is satisfied when an employee “regularly receives each pay period … a predetermined amount … not subject to reduction because of variations in the quality or quantity of the work performed.” 29 C.F.R. § 541.602(a).  This is the key:  a “salaried” employee must receive a guaranteed amount that is not subject to reductions based upon quality or quantity of work.  So long as the employee receives that “predetermined amount,” employers have great discretion in their method for calculating the amount.

An exempt employee’s earning may be computed on an hourly, a daily or a shift basis, without losing the exemption or violating the salary basis requirement, if the employment arrangement also includes a guarantee of at least the minimum weekly required amount paid on a salary basis regardless of the number of hours, days, or shifts worked, and a reasonable relationship exists between the guaranteed amount and the amount earned.

Snipes v. Northeast Pharmaceuticals, Inc., No. 2:11-cv-1000-SRW, 2013 WL 757628 at * 6 (M.D. Ala. Feb. 27, 2013) (citing 29 C.F.R. § 541.604(b)).

DOL Opinion FLSA2018-25 goes a step further and analyzes whether an employee loses the overtime exemption by working too many hours beyond the guaranteed “predetermined amount.”  In that opinion, an employer paid engineers a guaranteed weekly salary of $2,100, determined by multiplying $70 per hour by 30 hours per week.  Even if the engineer worked less than 30 hours, he/she still received $2,100.  The employer also paid the engineers an extra $70 per hour if they worked beyond 30 hours.

DOL found that the extra pay  beyond 30 hours was permissible, so long as there was a “reasonable relationship” between the guaranteed amount and the amount actually earned.  “A ‘reasonable relationship’ exists when ‘the weekly guarantee is roughly equivalent to the employee’s usual earnings at the assigned hourly … rate for the employee’s normal scheduled workweek.'”  Ultimately, the DOL found that an employee can earn up to 1.5 times the guaranteed “predetermined amount” without losing the exemption.  But, if an employee received as much as 1.8 times the guaranteed “predetermined amount,” they might be considered an hourly employee who is not exempt.

Obviously, these issues are complex.  If you want to compute your salaried employees’ pay “by the hour,” you should consult with your employment attorney.

 

 

Every Wrong Does Not Create a Legal Right

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Employees who have been “done wrong” do not automatically have a legal right to sue their employers.

In preparing for today’s blog post, I tried to figure out a way to incorporate the lyrics from:  “If Loving You Is Wrong, I Don’t Wanna Be Right.”  I couldn’t do it.  Instead, the real message of today’s post is a maxim that I learned back in law school:  “The law does not provide a remedy for every wrong.”  In other words, an employee who has been “done wrong” does not automatically possess a legal right to sue his employer.   Two Alabama employees recently learned that lesson when they tried to sue their employers for discrimination.

In Stubbs v. Compass Bank, No. 2:18-cv-00661-RDP, 2018 WL 5084860 (N.D. Ala. Oct. 18, 2018), Pamela Stubbs sued Regions Bank for gender discrimination because she was “treated differently and dealt with more harshly than one of her male coworkers.”  At the time of her lawsuit, she remained a current employee of Regions. Nevertheless, she was suing because she took sick leave, and then was “pulled into meetings” about her attendance, but a male employee was not subjected to scrutiny for his sick leave.  United States District Judge David Proctor found that Ms. Stubbs’s allegation did not satisfy a crucial requirement of a gender discrimination claim:  an “adverse employment action.”  Title VII of the Civil Rights Act of 1964 only provides a remedy to employees who suffer “a serious and material change in the terms and conditions, or privileges of employment.”  Generally, there must be “a significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”  Judge Proctor found that getting “pulled into meetings” did not satisfy that standard.

Magistrate Judge John Ott reached a similar conclusion on Martinez v. City of Birmingham, No. 2:18-cv-0465-JEO, 2018 WL 5013861 (N.D. Ala. Oct. 16, 2018).  In that case, Randy Martinez sued under Title VII for race and national origin discrimination.  His claim was based upon a litany of conduct, including: (1) unjust discipline by placing a letter of reprimand in his employee file; (2) transfer or reassignment to different departments within a short amount of time; (3) working in an area segregated/isolated from other employees; (4) failure to train and/or offer the Martinez continuing education opportunities; (5) unreasonable workload expectations; and (6) falsely investigating Martinez for failure to follow rules and regulations.  Judge Ott noted that “not all conduct by an employer negatively affecting an employee constitutes an adverse employment action capable of supporting liability under Title VII.”  He then reviewed Mr. Martinez’s allegations and concluded that none of the “wrongs” gave him a legal right to sue under Title VII.

The Stubbs and Martinez decisions don’t give employers carte blanche authority to treat their employees like dirt.  From a practical perspective, employers should want their employees to have some level of job satisfaction.  From a legal perspective, Stubbs and Martinez also demonstrate that employers can get sued for differential treatment, and spend legal fees defending that treatment, even if they ultimately win.  So, the true lesson to be learned is:  treat your employees right, and  you hopefully won’t get sued.  But, if an employee sues you just for being “done wrong,” you will probably have a good defense.

 

 

Post-Accident Drug Testing: OSHA “Clarifies” Its Position

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OSHA has “clarified” its position, and recognized the importance of post-accident drug testing policies.

Two years ago, I discussed difficulties that could be caused by new OSHA regulations on post-accident drug testing.  Here’s a link to that article:  Conflicts Between Alabama Law and OSHA Drug Testing Rules.  In that article, I noted that OSHA took the position that policies requiring “blanket post-injury drug testing policies deter proper reporting,” and are unreasonable.  Last week, OSHA issued a “clarification” of its position, and alleviated many of the concerns noted in my original article.  Here’s a link to the clarification:  OSHA Clarification on Post-Incident Drug Testing.  In contrast to 2016, OSHA now recognizes the importance of blanket post-injury drug testing:

The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.

So, if an employer drug tests in order to penalize an employee, then the drug test is questionable and might result in sanctions from OSHA.  Otherwise, post-accident drug testing policies are permissible.  Indeed, OSHA specifically found that the following are “permissible”:

  • Random drug testing.
  • Drug testing unrelated to the reporting of a work-related injury or illness.
  • Drug testing under a state workers’ compensation law.
  • Drug testing under other federal law, such as a U.S. Department of Transportation rule.
  • Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.  If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

OSHA’s clarification is very helpful for Alabama employers.  OSHA’s position in 2016 conflicted with the Alabama Drug Free Workplace Act, which incentivizes employers to adopt post-accident testing policies.  Now OSHA has changed course, and there is little danger to employers who adopt such policies.

Warning: You Might Be Required to Pay Employees for Meal Breaks

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If you require employees to work during lunch, they may be entitled to pay.

Are you paying employees for the time they spend on meal breaks?  Most employers don’t.  That’s because the Fair Labor Standards Act and its implementing regulations clearly provide:  “Bona fide meal periods are not worktime.”  29 C.F.R.§ 785.19(a).  Some employers rely upon that general regulation and simply refuse to pay employees who take a meal break.  That over-generalization can be costly, because it ignores the requirement that a meal period be “bona fide.”  A meal break is only bona fide if the employee is “completely relieved from duty for the purposes of eating regular meals.”  Id.

The United States Department of Labor provides some guidance on this issue here:  Breaks and Meal Periods.  Typically, a bona fide meal period lasts at least 30 minutes. Short breaks of 5 to 20 minutes are generally considered compensable work time.

The key issue here is whether the employee is “completely relieved from duty” during meals.  That was the focus of the Eleventh Circuit’s recent opinion in Cooley v. HMR of Alabama, Inc., No. 18-10657, 2018 WL 4232041 (11th Cir. Sep. 6, 2018).  In Cooley, the plaintiffs were nursing assistants and licensed practical nurses.  They claimed that during meal breaks they “cared for patient needs” and “tended to patients,” but were not paid for that time.  They sued under the FLSA, but a trial judge dismissed their complaint — finding that it failed to adequately state a claim under the law.

The Eleventh Circuit reversed that decision.  The court found that the employees’ allegations stated a plausible claim that they were not “completely relieved from duty.”  Even so, the employer raised an additional defense.  In order to be compensated, the nurses needed to be performing an activity that was a “principal activity” or “integral and indispensable to the principal activities that an employee is employed to perform.”  The employer argued that the nurses’ allegations were so vague that it could not determine if they were performing a “principal activity” during the meal breaks.  The Eleventh Circuit quickly rejected that argument, finding that “[i]t is reasonable to assume that caring for and tending to patients during the workday is a ‘principal activity’ of a nursing home employee, especially when that employee is employed in at least some capacity as a nurse.”

The Eleventh Circuit’s opinion does not mean that the nurses have won their lawsuit.  Instead, they are simply being given the chance to proceed and prove their case.  The employer still might win if it can demonstrate that the employees were “completely relieved from duty,” or not performing a “principal activity” during the meal breaks.  Nevertheless, Cooley provides an important reminder that employers should carefully review their meal break policies and ensure that employees are “completely relieved from duty” if they are not being paid.

From Small Things, Big Things One Day Come

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Small errors can have big consequences for employers.

I confess:  I’m a big Bruce Springsteen fan.  One of his more obscure songs is “From Small Things (Big Things One Day Come).”  The song itself has absolutely nothing to do with employment law, but I thought of the title when I read the Eleventh Circuit’s recent opinion in Jones v. Aaron’s Inc., No. 17-14298, 2018 WL 4203459 (Sep. 4, 2018).  The Jones case demonstrates that small errors in dealing with employees can have big consequences for employers.

Rosana Jones was a Customer Service Representative for Aaron’s, Inc.  She injured her back and took FMLA leave from June 2, 2013 to June 17, 2013.  Prior to her injury and FMLA leave, Jones worked 40 hours per week, but upon return her hours were reduced to 32 hours per week.  After two weeks working that reduced schedule, Jones complained to her supervisor, who returned her to 40 hours per week.  But, Aaron’s did not pay Jones for the 16 hours of missed work.

In October 2013, a new manager was assigned to Ms. Jones’s store, and she clearly had personality conflicts with that manager.  Those conflicts culminated in an event where Jones told the manager:  “Christ, just be a man.  Tell me what your problem is with me.”  Based upon that statement and other conflicts, Aaron’s terminated Ms. Jones’s employment.

Ms. Jones sued Aaron’s under the Americans with Disabilities Act and the Family and Medical Leave Act.  She focused on:  (1) the termination of her employment; and, (2) the loss of 16 work hours when she returned from FMLA leave.  A trial court dismissed both of those claims, but the Eleventh Circuit entered a limited reversal.

The Eleventh Circuit found that termination was appropriate, but reversed on the 16-hour issue. Aaron’s claimed that Ms. Jones requested a reduction of hours when she returned from FMLA leave, but Ms. Jones denied any such request.  Indeed, there was no documentation of any kind indicating such a request.  Instead, viewing the evidence most favorably for Ms. Jones, it appeared that Aaron’s management implemented the reduction of hours.

After Ms. Jones filed her lawsuit, Aaron’s paid her for the sixteen hours.  While the dollar amount is not mentioned in the Jones opinion, I suspect that the payment was only a few hundred dollars — at most.  After making that payment, Aaron’s essentially argued “no harm, no foul.”  But, the Eleventh Circuit was not persuaded:  “Employers cannot escape liability for adverse employment decisions by making retroactive payments to aggrieved employees. …. Moreover, Aaron’s late payment to Jones does not alter the fact that Jones was denied payment because of an FMLA violation, nor does it erase the injury caused by this alleged FMLA violation — specifically the lost value and use of the funds in the three years before she received payment.”

For Aaron’s, the practical impact of its small error will probably result in a much larger financial result.  The Eleventh Circuit’s opinion clears the way for a jury trial on the FMLA violation.  Most likely, the parties will settle that claim before trial.  And, the primary beneficiary of any settlement will be Ms. Jones’s lawyers.  The value of Ms. Jones’s FMLA claim for 16 hours is very low.  But, her lawyers will certainly claim that they are entitled to thousands of dollars of in attorneys’ fees for successfully pursuing the claim.  As a result, an error of several hundred dollars by Aaron’s will probably cost them thousands of dollars to resolve.

For employers, the practical lesson from Jones is:  be willing to admit when you’ve made a mistake.  If Aaron’s paid Ms. Jones before she filed suit, or if Aaron’s paid her for “the lost value and use of the funds,” the result of the case might have been much different.  By waiting to correct a violation, however, Aaron’s small error potentially resulted in much larger financial consequence.

Failing an Employee Assistance Program Can Justify Termination

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EAPs provide employees with an important benefit in fighting substance abuse issues.

Many employers offer their employees the benefit of an Employee Assistance Program (“EAP”).  An EAP is an intervention program that is designed to assist employees in resolving personal problems that may affect their performance.  There are many types of EAPs, but they usually involve referral for some type of counseling and/or treatment.  I frequently see EAPs provided for employees who have substance abuse issues.

Obviously, substance abuse is an important issue in the workplace.  And, employers justifiably want employees who are committed to overcoming substance abuse problems.  So, what happens if an employee suffering from substance abuse fails to comply with the terms of an EAP?  In some cases, an employer might be justified in terminating such an employee.  See Jacobson v. City of West Palm Beach, No. 17-12716, 2018 WL 4355863 (11th Cir. Sep. 12, 2018).

In Jacobson a firefighter self-medicated with marijuana for stress, anxiety and depression.  He self-reported his marijuana use to an Assistant Fire Chief  and was referred to a mandatory Employee Assistance Program.  That program required Mr. Jacobson to attend six therapy sessions with the goal of becoming “Drug Free.”  Unfortunately, Mr. Jacobson missed his fifth therapy session due to oversleeping.  The EAP’s case manager reported to the Fire Chief that Mr. Jacobson was out of compliance with the EAP.  The Fire Chief then reviewed the city’s collective bargaining agreement with firefighters, which provided:  “Failure to comply with the prescribed treatment program will result in termination of employment.”  Based upon that language, the Fire Chief terminated Mr. Jacobson’s employment.

Mr. Jacobson sued and claimed that the City violated the Americans with Disabilities Act.  According to Mr. Jacobson, he was fired because of his depression and anxiety.  A trial court ruled in favor of the City and the Eleventh Circuit Court of Appeals affirmed that decision.  The Eleventh Circuit refused to find that the City was required by the collective bargaining agreement to fire Mr. Jacobson.  Nevertheless, the Fire Chief’s reasonable belief that he was required to terminate was a sufficient, non-discriminatory reason for the termination decision.

Jacobson does not provide employers with carte blanche authority to terminate every employee who fails to comply with some aspect of an EAP.  Indeed, the Eleventh Circuit noted that Mr. Jacobson failed to request a “reasonable accommodation” under the ADA to make-up the missed EAP session.  Nevertheless, failure to comply with the terms of an EAP can, in some circumstances, justify termination.

 

Warning: “Offer Letters” Are Employment Contracts!

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Employers should exercise caution when providing new employees with offer letters

Many of my clients use “offer letters” to hire new employees.  Those letters generally inform a new employee about the job they are being offered and the salary they will be paid.  And, those letters ask the employee to sign that they accept the job.  Frequently, my clients are surprised when I tell them that their “offer letter” is a binding employment contract.  “It’s only a letter! We weren’t signing a contract!  There’s no details.”  But, one of the earliest lessons that law students learn is that a contract is created by “offer” and “acceptance.”  That’s exactly what an “offer letter” is.

The creation of an employment contract by an offer letter was one the key issues in Physiotherapy Associates, Inc. v. Deloach, No. 1:16-cv-02014-ACA, 0218 WL 4409349 (N.D. Ala. Sep. 17, 2018).  In that case, James Doug DeLoach signed an offer letter that contained extensive non-competition and non-solicitation requirements:  If DeLoach left his employer, he couldn’t compete or solicit employees.  But, the offer letter said that it was “not intended to create a contract of employment.”

Mr. DeLoach left his employment and went to work for a competitor.  When he was sued for breaching an employment contract, he argued that the offer letter meant what it said — it wasn’t an enforceable employment contract.  United States District court Judge Annemarie Carney Axon was not persuaded.  She found that the non-competition and non-solicitation provisions were enforceable.  Ultimately, Judge Axon ruled in Mr. DeLoach’s favor.  She essentially found that the non-competition and non-solicitation provisions were poorly-drafted.  And, Mr. DeLoach did not breach either of those provisions — as drafted.

Thus, the DeLoach case provides at least two lessons for Alabama employers.  First, if you use offer letters, I strongly recommend that you include language in the letter informing the employee that they will be an “at will” employee.  Otherwise, there is some potential to create an employment contract for a specific term.  Second, carefully review the language of your offer letters.  Don’t just assume that “form” language is going to apply to this employee.  If you have provisions that you want to enforce later, a reviewing Judge will hold your strictly to your own language.

Potential Strategies for Defending ADA Public Accommodation Cases

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Title III ADA claims involving public accommodations can be difficult for business owners.

In recent years, several of my clients have been threatened with lawsuits for allegedly violating Title III of the Americans with Disabilities Act.   Title III of the ADA ensures that individuals with disabilities are not discriminated against by owners or operators of places of public accommodation such as shopping centers, restaurants, offices and amusement parks.   Typically, Title III claims focus on the ability of people with disabilities to fully access stores and other places of public accommodation.  Here’s an article from AL.com a few years ago discussing the increase in these types of lawsuits:  ADA Lawsuits Against Businesses on the Upswing.  The issue has become significant enough that the United States House of Representatives has passed the ADA Education and Reform Act.  Here’s an article by the Alabama Retailers Association discussing that legislation:  ADA Reform Act.  The Senate has not yet passed or approved similar legislation, however.

Therefore, businesses need to be proactive in protecting themselves from ADA claims.  The best way to protect yourself is to hire an expert (usually an architect) to review your business and ensure that it complies with the ADA’s accessibility requirements.  But, what happens if you get a letter, or a lawsuit, claiming that you’ve violated the law?

At that point, you have a business decision to make.  No matter what, if you’ve truly violated the ADA (even unintentionally) you need to fix the problem.  But, many times these lawsuits focus on highly technical issues that leave room for debate over whether there’s been a violation.  In other cases, the “fix” requested by an ADA customer may be more expensive than is “readily achievable.”  You need to consider all available financial factors (such as cost of repair and cost of paying your attorney) in deciding whether you want to fight a claim that you violated the ADA.

In most cases, the central issue won’t be the cost of repairs, but the cost of attorneys’ fees to pay the lawyer representing the disabled customer.  Many times, lawyers file lawsuits for small violations of the ADA in hopes of generating substantial legal fees that can be awarded by a judge to  a “prevailing party” in an ADA case.

In most cases, I advise my clients to fix any alleged ADA violations that can be quickly remedied.  To that end, one strategy is to fight over matters that are not truly violations, or “solutions” that are not readily achievable.  That strategy was followed successfully by the business-owner in Kennedy v. Omegagas & Oil, LLC, No. 18-10102, 2018 WL 4183462 (11th Cir. Aug. 31, 2018).

In Kennedy, it appears that the business-owner drew the metaphorical “line in the sand.”  A wheelchair-bound customer visited a gas station/convenience store and noted numerous violations of the ADA including:  an improperly marked and blocked handicapped parking space; unsecured floor mats; a pedestal sink in the bathroom, which would prohibit her from utilizing the sink; sink and doorknob hardware in the shape of knobs, which require gripping and twisting to operate; missing or improperly placed grab bars near the toilet; a flush control on the incorrect side of the toilet; and a paper towel dispenser located too high to be reached.  The owner quickly began work to fix those alleged violations.  Nevertheless, the parties argued over the plaintiff’s request to increase the maneuverable space in the store’s bathroom.

By the time of trial, every alleged violation except the maneuverable space was fixed.  As a result, the trial judge found that the ADA claims for those violations were “moot,” and that the plaintiff did not possess a claim.  With regard to the maneuverable space issue, the trial court found that the renovations required to obtain sufficient maneuverable space were not “readily achievable.”   In an existing building, the ADA states that discrimination includes a private entity’s “failure to remove architectural barriers … where such removal is readily achievable. ” 42 U.S.C. § 12192(b)(2)(A)(iv)). “Readily achievable” is defined under the ADA as “easily accomplished and able to be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9).

The trial judge found that the plaintiff failed to meet her burden of demonstrating renovations for more maneuverable space were “readily achievable.”  In particular,  the plaintiff failed to rebut the business owner’s evidence that it would cost $80,000 or more, and would require him to close the gas station and store during renovation.

The Eleventh Circuit carefully reviewed the trial court’s decision and affirmed it on appeal.  I have not talked to any of the lawyers involved in this case, but I strongly suspect that the real issues were “mootness” and attorneys’ fees.  Based upon my experience, I believe that the plaintiff’s attorney asked to be paid an attorneys’ fee for obtaining a remedy of the violations that were quickly fixed by the gas station/convenience store owner.  If the owner paid a fee to the lawyer, I suspect that the plaintiff would have agreed that maneuverable space in the bathroom would not be “readily achievable.”

But if a business-owner refuses to payoff the plaintiff’s attorney, that attorney can only get paid if he goes to court and persuades a judge that there’s been a violation of the ADA.  In short, the business owner was taking a risk.  If the trial judge found that the claims weren’t “moot,” the owner would have to pay attorneys’ fees.  Similarly, if the trial judge found that the improving the maneuverable space fix was “readily achievable,” the owner would have to pay attorneys’ fees.

Some business owners might be thinking:  “Great!  I’ll fix the cheap problems and fight the expensive ones, and everything will turn out OK.”  Not so fast, my friend!  You need to carefully review all factors with your lawyer before making this kind of final decision in an ADA public accommodation case.  The trial judge possesses a tremendous amount of discretion in determining whether accessibility issues are “moot.”  A different judge could easily have reached a different conclusion and imposed liability on the gas station/convenience store owner — even for the problems that he quickly fixed.  So, proceed cautiously, but know that, in some cases, there are defenses to Title III ADA public accommodation claims.