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.
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.
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.
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.
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).
What you say on social media can get you fired. But, sometimes you can sue for it. That’s the lesson to be learned from the Alabama Supreme Court’s recent case in Flickinger v. King, No. SC-2022-0721, 2023 WL 3029709 (Ala. Apr. 21, 2023).
Daniel Flickinger was an associate attorney for a Birmingham law firm who posted the following message about George Floyd on Facebook:
Things I think about: If I were a seven-time felon, with my most recent prison stint stemming from robbing and holding a pregnant woman at gunpoint in her home, would I choose to die in a fentanyl and methamphetamine numbed strangulation if it meant being worshipped in a nationwide funeral and my family receiving millions of dollars? Purely hypothetical.
The next day, Flickinger was called into a meeting with the partners at his law firm and forced to resign. During that meeting, the partners showed Flickinger social media posts allegedly generated by Lawrence King – another attorney at a completely different law firm. Flickinger claimed that King created a “counterfeit” social media profile with his law firm photograph and law firm information. The partners told Flickinger that they communicated with King who could “control” the distribution of information favorably for the partners and their firm. After Flickinger resigned, King issued social media posts speaking favorably about the firm. King also issued other posts “gloating” about his ability to get people fired if he disagreed with their opinions.
Flickinger sued King and King’s law firm for: (1) defamation; (2) invasion of privacy; and (3) tortious interference with Flickinger’s employment. The trial court granted a motion to dismiss all claims and Flickinger appealed. The Alabama Supreme Court affirmed dismissal of Flickinger’s defamation and invasion of privacy claims but reversed dismissal of the tortious interference claim.
King tried to argue that Flickinger must show “fraud, force or coercion” that led to Flickinger’s termination. The Court rejected that argument and noted that the “fraud, force or coercion” requirement was eliminated from Alabama case law in 2009. The Court also noted that Flickinger was terminated almost immediately after King contacted his law firm.
To be clear, this was a reversal of a motion to dismiss. To survive dismissal, Flickinger was only required to allege the basic requirements of a tortious interference claim – and the Supreme Court found that he met that lenient standard. Flickinger must now go through discovery and prove that King got him fired.
At the end of the day, I imagine both Flickinger and King are regretting their conduct on social media. Actions have consequences. Flickinger spoke out and lost his job. King allegedly gloated on social media and got sued. Be careful what you say on social media, because it can (and will) be used against you.
The labor market is tight right now. Employers are looking for ways to attract and retain employees. One strategy for employee retention is to pay a bonus of some kind. Everybody likes money. So, bonuses are a great way to increase employee satisfaction. But, employers paying bonuses should make sure that they do not accidentally violate the Fair Labor Standards Act as a result.
Here’s the scenario. You pay your production employees $20 per hour. But, you also promise them a $500 bonus if they reach certain production goals. In the vast majority of cases, you must include at least some part of that $500 in their regular rate of pay for each week in the bonus period. If the employee works more than 40 hours during a week for which the bonus is awarded, their overtime rate increases.
In our scenario, let’s say the employer has a rush job that must be completed in one week. The employer promises a $500 bonus if production goals are met during the week. The rush job requires an employee to work 60 hours during the week. Ordinarily, the employee would receive $1,200 for 60 hours of work, plus $200 for overtime, for a total of $1,400. But, with the $500 bonus, their regular rate of pay for the week would be: $1,700 ($1,200 + 500), divided by 60 hours, for a regular hourly rate of $28.33. Overtime would be calculated based on $28.33 per hour rather than $20.00. As a result, the employee would be entitled to an additional $14.17 for each of the 20 hours of overtime, resulting in $283.40 owed for overtime. In total, they would be owed: (1) $1,200 for working 60 hours at $20 per hour; (2) $500 for the production bonus; and, (3) $283,40 for overtime. The total would be $1,983.40.
You might say: “That’s only a difference of $83.40.” But, scale matters. If you owe $83.40 to 500 employees, your FLSA liability is now at least $41,700. Additionally, even mis-payment to one employee can be costly. The FLSA awards attorneys fees to employees who successfully sue for violations of the overtime laws. Also, an experienced employee-rights attorney will almost certainly allege that the employer has a practice of failing to correctly calculate the hourly rate and ask a judge to certify a collective action under the FLSA. Even if there is no such practice, you will probably spend a substantial amount in legal fees defending the claim.
Please note that the foregoing example is extremely simplified because it assumes that the bonus is paid for work performed solely in one week. If the bonus period is longer, the math becomes more complex because the total amount of bonus is evenly distributed over the bonus period. In our scenario, if the bonus was awarded for meeting production goals over the course of four weeks, the $500 would be divided by four and and extra $125 would be allocated to each of the four weeks. This can require employers to retroactively calculate overtime amounts in many cases.
Not all bonuses must be included in the regular rate of pay for the week. One of the primary issues in litigating these claims is whether the bonus was “discretionary” or “non-discretionary.” If a bonus is non-discretionary, it must be included in the regular rate of pay for the week. Here are some of the examples the United States Department of Labor gives for non-discretionary bonuses:
any bonus which is promised to employees upon hiring
any bonus which is the result of collective bargaining
bonuses which are announced to employees to induce them to work more steadily or more rapidly or more efficiently
bonuses which are announced to employees to induce them to remain with the fir
most attendance bonuses
individual or group production bonuses
bonuses for quality and accuracy of work
bonuses contingent upon the employee’s continuing in employment until the time the payment is to be made.
29 C.F.R. § 778.211(c).
Obviously, these overtime scenarios can get complicated quickly. If you are paying bonuses to employees, work carefully with your bookkeeping department, your CPA and, if necessary, your employment lawyer to make sure that you comply with FLSA.
I am excited to announce that I will be a speaker at the 2023 DRI Employment and Labor Law Seminar to be held from May 3-5, 2023 in New Orleans. The name of my session is: “Litigation Workshop: An Off-The-Record Discussion About The Record At Trial And On Appeal.” I will be moderating a discussion with The Honorable Cory Wilson, Fifth Circuit Court of Appeals The Honorable Donna Phillips Currault, United States Magistrate Judge, New Orleans, LA.
This is a truly unique opportunity to improve your litigation skills. Judge Wilson and Judge Currault will provide unique insight from their experience on their strategy for creating an effective record for trial and appeal.
To register, please click the following link then the “Register Now” button.
Alabama employers should immediately review their employee handbooks to ensure that they are not creating an employment contract with their employees. Most employers know that they need to have a disclaimer at the beginning of their handbooks. But, a recent case from the Alabama Supreme Court demonstrates that some disclaimers are not as effective as others. See Davis v. City of Montevallo, No. 1210016, 2023 WL 180252 (Ala. Jan. 13, 2023).
A quick review of Alabama employment law. In the absence of an employment contract, all employment in Alabama is “at will” — meaning that the employment relationship can be terminated by the employer or employee at any time for no reason whatsoever. But, an employee handbook can create an employment contract if it offers specific promises that are accepted by the employee. Employers can avoid accidentally creating an employment contract by including a provision in their handbook that essentially says: “This handbook is not a contract.”
In Davis, the City of Montevallo distributed an employee handbook with a disclaimer, but the handbook also contained a promise that specific procedures would be followed in the event of termination (including notice and a hearing). Even though Mr. Davis was an “at will” employee, he argued that the City was still required to follow the termination procedures before he could be fired. The language of the disclaimer was crucial to the Court’s decision:
I acknowledge having been given a City of Montevallo Personnel Handbook and have been asked to carefully read it. I have been informed that I may ask my supervisor any questions that I do not understand. I understand that nothing in this Handbook can be interpreted to be a contract for employment for any specified period of time or to place a limitation on my freedom or the City’s freedom to terminate the employment relationship at any time. I also understand that the City retains the freedom to change the Policies and Procedures with the approval of the Mayor and City Council.
The Supreme Court distinguished between the reason for terminating an employment relationship and the means used to terminate the relationship. The Court found that Montevallo’s disclaimer permitted the city to terminate for no reason, but that the procedural language in the handbook also provided a promise regarding the means by which Mr. Davis would be terminated. The Court reversed dismissal of Mr. Davis’s lawsuit. Presumably, he will be reinstated and given notice and a termination hearing.
Fortunately, the Court also provided clear guidance on how to avoid Montevallo’s fate by noting that a different result would occur if different handbook language was used:
“This Handbook and the policies contained herein do not in any way constitute, and should not be construed as a contract of employment between the employer and the employee, or a promise of employment.”
“The policies in this booklet are not an expressed or implied contract of employment.”
The key lesson from Davis is that some disclaimers are better than others at preventing the creation of an employment contract. Therefore, Alabama employers should immediately review their handbooks to make sure that their disclaimer language unequivocally says: “This handbook is not a contract.”
If you want to arbitrate employment disputes, get a hand-signed arbitration agreement from your employee. That’s the lesson to be learned from an opinion issued by Judge David Proctor last week. Allen v. PJ Cheese, Inc., No. 2:20-CV-1846-RDP, 2022 WL 16972494 (N.D. Ala. Nov. 16, 2022).
I really don’t like arbitration of employment disputes. When I first started practicing law, arbitration was advertised as a cheaper, faster way to get a decision from an experienced decision-maker. Most attorneys now agree that employment arbitration is neither cheaper nor faster than litigation. And, employment arbitrators tend to “split the baby” attempting to make everyone happy.
Nevertheless, I have some clients who want to arbitrate their employment disputes. And, in this age of pervasive technology, they frequently obtain their arbitration agreements through online applications and the use of “electronic signatures.” Allen demonstrates one weakness with that process.
Mr. Allen sued his employer, PJ Cheese, for race discrimination. PJ Cheese filed a motion for summary judgment asking Judge Proctor to dismiss the case because Mr. Allen signed an arbitration agreement. PJ Cheese relied upon its electronic application process, which required e-signatures on a variety of documents, including an arbitration agreement. Mr. Allen admitted that he e-signed documents “relating to taxes and wages,” but “unequivocally disputed” that he ever e-signed an arbitration agreement. PJ Cheese admitted that none of its representatives saw Mr. Allen sign the agreement and could not “definitively say who was the individual who applied this electronic signature to this document.”
Faced with conflicting evidence, Judge Proctor was required to deny the motion for summary judgment. Instead, he set the case for trial — presumably on the issue of whether Mr. Allen e-signed the agreement. At trial, a jury will determine whether Mr. Allen is telling the truth when he denies e-signing the arbitration agreement.
Allen teaches that a hand-signed arbitration agreement is better than an e-signature. But, even a hand-signed agreement is not foolproof. The party opposing arbitration can still argue that a hand-signed document is forged. See Ex parte Meadows,782 So.2d 277 (Ala. 2000). Still, a hand signature is the best way to avoid the trial required by Allen.
Since the beginning of the COVID-19 pandemic, my clients have asked a lot of questions about paying employees for time spent testing for COVID-19 and receiving the COVID-19 vaccine. The United States Department of Labor previously provided some guidance on their web page of Questions and Answer Related to COVID-19 and the Fair Labor Standards Act. Here’s what DOL said:
7. If my employer requires COVID-19 testing during the workday, do I need to be paid for the time spent undergoing the testing?
Yes, under the FLSA, your employer is required to pay you for time spent waiting for and receiving medical attention at their direction or on their premises during normal working hours. Other laws may offer greater protections for workers, and employers must comply with all applicable federal, state, and local laws.
8. My employer is requiring me to undergo COVID-19 testing on my day off before I can return to the jobsite. Do I need to be paid for the time spent undergoing the testing?
It depends, under the FLSA, your employer is required to pay you for all hours that you work, including for time on your vacation day if the task you are required to perform is necessary for the work you are paid to do. For many employees, undergoing COVID-19 testing may be compensable because the testing is necessary for them to perform their jobs safely and effectively during the pandemic. For example, if a grocery store cashier who has significant interaction with the general public is required by her employer to undergo a COVID-19 test on her day off, such time is likely compensable because it is integral and indispensable to her work during the pandemic. Other laws may offer greater protections for workers, and employers must comply with all applicable federal, state, and local laws.
DOL and its Wage & Hour Division have now released “Fact Sheet #84,” which provides an additional level of detail for employers struggling with these issues. Here’s a link to the DOL Fact Sheet: DOL Fact Sheet #84. Here are the rules from that Fact Sheet in a nutshell:
If an employer requires an employee to get vaccinated or tested for COVID-19 during normal working hours, the employer must pay for the time spent engaging in that activity.
If an employer requires an employee to get vaccinated or tested outside normal working hours, the employer must pay for that time if the vaccine or testing is necessary for them to safely and effectively perform their job. Although not explicit, it appears that DOL is assuming that vaccines and testing are necessary for virtually all employees to safely and effectively perform their jobs. The example used by DOL involves assembly line workers and says: “the vaccine is necessary for them to safely and effectively perform their assembly line jobs.”
Some employers have implemented vaccine mandates and granted accommodations to employees who cannot receive the vaccine for health-related or religious reasons. If the employer requires COVID-19 testing of those accommodated employees outside normal working hours, the employer must pay for the time.
Some employer have adopted vaccine mandates with a voluntary test-out option. If an employee voluntary declines to be vaccinated (without a religious/health exemption), and the employer requires testing outside normal working hours, the employer is not required to pay for the time.
Where vaccination or testing is not required by an employer, an employee’s voluntary decision to be tested or vaccinated outside normal working hours is not compensable.
My strong suggestion is that employers should follow this guidance from DOL. Nevertheless, stubborn employers might have an argument that they are not required to pay for testing and vaccination outside normal working hours. The general rule is that employers must pay for time outside of working hours if that time is “integral and indispensable” to the employee’s job.
And, DOL clearly considers vaccine/testing time to be “integral and indispensable” in most circumstances. But, at the end of the day, only a federal judge can decide if an employer has violated the Fair Labor Standards Act. And, generally, federal judges in the Eleventh Circuit (which includes Alabama) tend to be more conservative than the DOL. See Bonilla v. Baker Concrete Constr. Inc., 487 F.3d 1340 (11th Cir. 2007)(time spent by construction workers waiting to go through airport security was not “integral and indispensable” to their work.) So, it might be possible to argue, on a case-by-case basis, that vaccine/testing time is not “integral and indispensable” to a particular job. Again, I would not recommend this course of an action. But, it’s an argument that employers can make if push-comes-to-shove.