Author: Robert C. Lockwood

ADA Interference: A Rare Claim In the 11th Circuit

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail
ADA interference Alabama Employment Law
Pass interference will result in a penalty in football. ADA interference can result in monetary penalties in court.

Even after nearly 30 years of practicing employment law, I still learn new things regularly.  Last week, a friend on LinkedIn posted about an ADA “interference” claim being filed by the EEOC.  Now, I’m very familiar with ADA discrimination and retaliation claims, but I’ve never encountered an interference clam.  So, my first thought was: “This is just another example of EEOC overreach.”

But, another friend quickly slapped some education on me.  The ADA explicitly provides that it is “unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by [the ADA].” 42 U.S.C. § 12203(b).

I suspect that I haven’t seen any ADA interference claims because most employers who try to “coerce, intimidate, threaten or interfere” with ADA rights are probably getting sued for discrimination or retaliation.  Nevertheless, I decided to do a deeper-dive on the status of ADA interference claims in the Eleventh Circuit.

You can forgive your friendly, neighborhood employment lawyer for a lack of familiarity with ADA interference claims.  Even the Eleventh Circuit Court of Appeals admits that it “has not yet had occasion to explain the proper standard for evaluating an ADA anti-interference claim.” Atchison v. Bd. of Regents of Univ. Sys. of Georgia, 802 F. App’x 495, 508 (11th Cir. 2020).

Even so, the Court has found that a person must actually possess ADA rights to pursue an interference claim.  See EEOC v. STME, LLC, 938 F.3d 1305 (11th Cir. 2019).  The primary holding of the STME case is that an employer did not violate the ADA when it fired an employee for taking a vacation in Ghana – because of a fear that the employee would contract the Ebola virus.  I actually wrote about STME here: Fear of Ebola

But, I completely glazed over the interference claim.  The EEOC tried to assert a claim that a threat of termination prior to the vacation was an “interference” under the ADA. But, the Eleventh Circuit rejected that claim.  At the time of the threatened termination, the employee was not actually disabled by Ebola and thus had no right to a reasonable accommodation under the ADA. She had not associated with, or even planned to associate with, any known person disabled by Ebola either.  So, because she did not possess any ADA rights, there was nothing to interfere with.

Atchison v. Bd. of Regents of Univ. Sys. of Georgia, 802 F. App’x 495, 508 (11th Cir. 2020), was actually a claim by a student claiming discrimination by Georgia Tech.  Among other things, the student argued that a $1,229.63 fee imposed by Georgia Tech for retrieving and copying records interfered with his ADA rights.  He also argued that inclusion of a picture of a red stapler (a reference to the movie “Office Space”) mocked him and interfered with his rights.  Without establishing any particular standard for reviewing interference claims, the Eleventh Circuit found that neither action was an interference with ADA rights.

There have been several decisions from the various District Courts in the Eleventh Circuit discussing ADA interference claims.  At least one from Alabama is notable.

In Mosely v. AMNS Calvert, LLC, No. 1:20-00517-KD-M, 2022 WL 843773 (S.D. Ala. Mar. 21, 2022), Judge Dubose adopted the following elements for analysis of an ADA interference claim:

  1. The plaintiff exercised a right protected by the ADA;
  2. The defendant coerced, intimidated, threatened, and/or interfered with the plaintiff’s enjoyment of his or her ADA rights; and,
  3. The defendant’s actions were motivated because the plaintiff exercised a right protected by the ADA.

Mosely, 2022 WL 843773 at *8.  The plaintiff in Moseley requested a reasonable accommodation and then was assigned a heavy workload, was subjected to heightened scrutiny, and was placed on a Performance Improvement Plan.

Judge DuBose found that the ADA’s interference provision only prohibits “discriminatory conduct that is so severe or pervasive that it will have the effect of causing a protected person to abandon the exercise of his or her ADA rights.”  Id. at *9.  Judge DuBose found that the heavy workload and heightened scrutiny allegations did not meet that high standard.

Judge DuBose found that placement on a Performance Improvement Plan might meet the standard.  But, the plaintiff still failed in element three because she could not show that placement on the PIP was the result of her request for accommodation.  Instead, the unrefuted evidence showed that the plaintiff had performance issues that pre-dated her request for accommodation.  And, those performance issues, which continued after the request for accommodation, were the basis for the PIP.

Here are my takeaways:

  1. ADA interference claims are rare.
  2. The law on ADA interference claims is still developing in the Eleventh Circuit
  3. The standard for proving an ADA interference claim appears sufficiently high that most employees will simply sue for discrimination or retaliation.
  4. To avoid any ADA claim (interference, discrimination or retaliation), an employer should never consider an employee’s disability or ADA rights when making an employment decision.

Ranking the 11th Circuit’s Most Important Employment Decisions

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail

Here is a quick, off-the-cuff ranking of the most important decisions in employment law for the Eleventh Circuit:

  1.  McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  The big grandaddy of them all.  This case establishes the burden-shifting scheme which guides the analysis of most employment cases.
  2. Faragher v. City of Boca Raton, 524 U.S. 775 (1998); and,  Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).  These cases establish the Faragher/Ellerth defense to sexual harassment claims.  In summary, if you have an effective, well-disseminated policy prohibiting sexual harassment and an employee fails to utilize that policy, they will probably be barred from suing.
  3. Lewis v. City of Union City, 918 F.3d 1213 (11th Cir. 2019).  Most employees suing for discrimination point to differential treatment of other employees — called “comparators.”  This decision “clarifies” that comparators  must be “similarly situated in all materials respects.”
  4. Smith v. Lockheed–Martin Corp., 644 F.3d 1321, 1326 (11th Cir.2011). McDonnell-Douglas is the big grandaddy, but this is the first case to reference the “convincing mosaic” standard.  Used by employees who cannot identify a sufficient comparator, the convincing mosaic standard asks whether the evidence,” when viewed as a whole, “yields the reasonable inference that the employer engaged in the alleged discrimination.”
  5. Drago v. Jenne, 453 F.3d 1301 (2006).  Employees suing for retaliation must prove that they were terminated because of their protected conduct.  They usually try to do that by showing close timing between their conduct and termination.  Drago establishes that a 3-month gap between protected conduct and termination is not close-enough to establish causation.
  6. Beasley v. O’Reilly Auto Parts, 69 F.4th 744 (11th Cir. 2023).  This is a relatively new case and the ramifications are still shaking out.  Some claim that it requires proof of an “adverse employment action” to sue for failure to accommodate under the ADA. At a minimum, the employee just show that the failure to accommodate “negatively impacts the employee’s hiring, advancement, discharge, compensation, training, and other terms, conditions, and privileges of his employment.”
  7. Strickland v. Water Works & Sewer Bd. of Birmingham, 239 F.3d 1199 (11th Cir.2001).  The burden on employers who interfere with employees’ FMLA rights is different than other employment statutes.  In these claims, the burden is on the employer to demonstrates that it would have taken an action “for a reason wholly unrelated to the FMLA leave.”
  8. Bostock v. Clayton County, Ga., 140 S. Ct. 1731 (2020).  Recognizing that discrimination against employees based on sexual orientation violates Title VII.  Interestingly, before Bostock, the Eleventh Circuit already prohibited discrimination based on “gender nonconformity.”  Glenn v. Brumby, 663 F.3d 1312, 1316–17 (11th Cir. 2011).
  9. Sutton v. United Air Lines, Inc., 527 U.S. 471, 482 (1999).  This was a Supreme Court decision so unfavorable to disabled employees that a Republican Congress passed the Americans with Disabilities Act Amendments Act — making it much easier for employees to sue for disability discrimination.
  10. Pollard v. Drummond Co., Inc., No. 2:12-CV-03948-MHH, 2015 WL 5306084 (N.D. Ala. Sep. 10, 2015).  I just really dislike this decision.  Two doctors told an employer that an employee on methadone could not work in a coal mine.  Nevertheless, the Court found a triable issue for purposes of disability discrimination.  Here’s a link to my blog post about it:  Trust Your “Company Doctor” and Violate the ADA

Mess Around and Find Out: Don’t Handle Your FLSA Claims Like This

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail
FLSA overtime sanctions Alabama Employment Law
The Eleventh Circuit laid a smack-down on an employer in a difficult FLSA case.

If you want the perfect example of what not to do in litigation, just read the first paragraph of this FLSA opinion from the Eleventh Circuit Court of Appeals.

In this labor dispute, the district court ordered defendant Outokumpu Stainless to produce key time and pay records. For more than two years, Outokumpu begged for more time and promised both the court and the plaintiffs that it would produce the records—but time after time, it failed to comply. And as it repeated this pattern, Outokumpu began to paint its third-party payroll processor as the true culprit. Until, that is, the payroll processor caught wind of Outokumpu’s misrepresentations and corrected the record. Confronted with a merry-go-round of broken promises and blatant misrepresentations, along with an upcoming wage-and-hour trial for which no wages or hours were known, the district court issued the only sanction remaining in its arsenal: default judgment.

Hornaday v. Outokumpu Stainless, USA, LLC, No. 22-13691, 2024 WL 4471161 at *1 (11th Cir. Oct. 11, 2024).

Ouch.  And, it didn’t get any better from there.

This was a complex FLSA case because Outokumpu’s payment system for employees was complex.  The pay rate changed based on the shift worked, the way time was rounded, the level of work, and the company’s monthly incentive plan. Whether overtime was paid correctly depended on these factors as well as how Outokumpu defined its workweek.

As a result, detailed time records were essential for determining what, if anything, employees were owed.  And, employers unquestionably have a duty under the FLSA to make, keep and preserve time records.  29 U.S.C. § 211(c).  Yet, Outokumpu could not, or would not, produce time records establishing its methods for calculating employee pay.  Then, it engaged in a protracted practice of making promises and shifting blame for its lack of production.  The trial court bent-over-backwards and gave Outokumpu numerous chances, but ultimately determined that the conduct was so egregious that only one result was proper:  victory for the employees.

When Outokumpu appealed, things only got worse because the employees cross-appealed.  The Eleventh Circuit found a “remarkable lack of contrition” on the part of Outokumpu, affirmed the trial court’s grant of default judgment and actually reversed a part of the trial court’s decision in favor of the employees.   The employees had asked the trial court for damages dating back to 2015, and the court denied that request.  The Eleventh Circuit reversed because the trial court did not explain its reasons for denial.  In short, it’s possible that Outokumpu’s damages might actually increase as a result of its appeal.

To me, there are two main take-aways from this case:

  1.  Employers must embrace their duty to keep time records.  If you fail to keep detailed, accurate time records for all employees, bad things will happen to you in FLSA litigation.
  2. At some point, you have to fall on your sword.  You might disagree with a Judge’s ruling, but sometimes there’s no way to salvage victory from defeat. It’s always easy for me to Monday-morning-quarterback a case, but Outokumpu needed to shift strategy at some point and work on limiting damages, instead of seeking to avoid any liability.

What to do when you fail to pay employees overtime.

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail
overtime flsa alabama employment law
What should you do if you fail to pay employees overtime?

What should an employer do when it determines that it has misclassified employees as exempt and failed to pay them overtime required under the Fair Labor Standards Act? I’m providing an FLSA update to the Alabama Society for Human Resource Management (ALSHRM) tomorrow. In my preparations, I found an interesting Alabama case on this issue: Cornelison v. Southern Synergy, Inc., No. 5:20-cv-01157-MHH, 2024 WL 2807018 (N.D. Ala. May 31, 2024).

In that case, Steven Cornelison sued Southern Synergy claiming that it misclassified him and owed him overtime. Mr. Cornelius also asked the Court to certify a collective action composed of other employees who were misclassified and owed overtime.

Here’s where things went awry. Southern Synergy promptly analyzed its workforce and determined that it failed to pay overtime to employees. So, it smartly calculated overtime owed and paid it to applicable employees. But, Southern Synergy did not give those employees liquidated damages equal to the amount of overtime withheld. And, under the FLSA, the employees were entitled to liquidated damages unless Southern Synergy could prove that it, in good faith, previously believed they were not entitled to overtime.  Southern Synergy sent the employees a letter explaining the extra pay, but did not mention liquidated damages and directed employees to contact the HR Director with any questions.

Mr. Cornelison’s attorneys argued that Southern Synergy’s actions were an improper attempt to avoid its obligation to pay liquidated damages under the FLSA.  And, United States District Court Judge Madeline Haikala agreed.  On September 25, 2021, she issued an order requiring that notice be given to all employees of Mr. Cornelison’s lawsuit and their potential ability to join the lawsuit.  On March 22, 2022, she approved the language for the notice that would be provided to employees.

Southern Synergy then required employees to attend a mandatory meeting in April of 2022.  During that meeting, the litigation was discussed and employees were directed to contact the HR Director with any questions. They were told that Mr. Cornelison could make settlement decisions for them.  And, Southern Synergy omitted information about Court approval required for any settlement.

Thereafter, no Southern Synergy employees contacted Mr. Cornelison’s lawyers or opted into the collective action.   So, Mr. Cornelison’s filed a motion for sanctions, arguing that Southern Synergy continued to interfere with the employees’ FLSA rights.

On May 31, 2024, Judge Haikala granted the motion for sanctions.  She noted that employers are allowed to communicate with potential class members about collective actions, but that such communications cannot be “factually inaccurate, unbalanced or misleading.”  Additionally, the information provided cannot “include communications that coerce prospective class members into excluding themselves from the litigation; communications that contain false, misleading or confusing statements; and communications that undermine cooperation with or confidence in class counsel.”

Mr. Cornelison’s lawyers asked for sanctions equal to the amount of liquidated damages that would otherwise have been payable to members of the class.  But, Judge Haikala did not go that far.  Instead, she only order Southern Synergy to pay Mr. Cornelison’s attorneys’ fees based on the extended litigation caused by Southern Synergy’s actions.

And, at the end of the day, those attorneys’ fees totaled $86,007.50.  That’s a fairly hefty sum.  But, Mr. Cornelison’s liquidated damages were approximately $31,000.00.  If other employees were entitled to similar amounts of liquidated damages, Southern Synergy may have saved itself money — even though Judge Haikala found that its actions were improper.

Here are my takeaways:

  1.  Regularly review your workforce to determine if employees are receiving the overtime to which they are entitled.
  2. If you determine that you have failed to pay overtime, fix that problem quickly.
  3. Determine if you possess a “good faith” defense that may allow you to avoid payment for liquidated damages.
  4. If you decide to communicate with employees about payments, make sure that all communications are neutral and truthful.
  5. All litigation involves balancing risk with reward. In this case, Southern Synergy may have taken a risk in its communication with employees and it may have paid off.

 

 

“Next Lawyer Up” Podcast: Featuring Robert Lockwood

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail

 

podcast next lawyer up employment law Alabama employment law
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.

I’m honored to be included in Ron’s list of distinguished guests.  Here’s a link to our episode: Episode 130 – Next Lawyer Up with Ron Sykstus featuring Robert Lockwood | Bond & Botes Law Offices (bondnbotes.com)

The NLRB Hates Employee Handbooks: Should You Revise Yours?

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail
NLRB Stericycle handbooks policy Alabama employment law
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.

 

 

 

PWFA Grants New Protections For Pregnant Workers

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail
PWFA pregnant workers fairness act title vii accommodation Alabama employment law
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.

The EEOC is still working on regulations implementing the PWFA.  But, they have also issued some guidance on their web page: What You Should Know About the Pregnant Workers Fairness Act.

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

Accommodating Religious Beliefs: Important New Supreme Court Case

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail
sabbath religious accommodation undue burden substantial cost title vii Alabama employment law
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:

  1.  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.
  2. 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.

 

FLSA: No Tolling Statute of Limitations Where Action Filed in Wrong Court

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail
FLSA wage and hour tolling Alabama Employment Law
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: Specific Safety Standard Bars “General Duty” Liability

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail
OSHA "general duty" forklift Alabama Employment Law
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.