Overtime Regulation Struck Down

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The Department of Labor’s Overtime Regulation Was Struck Down By a Federal Judge.

Yesterday, United States District Court Judge Amos Mazzant struck down a Department of Labor overtime regulation which increased the threshold for salary exemption under the Fair Labor Standards Act from $23,000 per year to $47,476 per year.  Here’s an article from The Hill discussing Judge Mazzant’s ruling:  Texas Judge Strikes Down Obama Overtime Rule

I wrote about the overtime regulation when it was released, here:  Overtime Rule Released.  After the regulation was released, numerous interested parties filed suit in Judge Mazzant’s court challenging the regulations, and he issued a preliminary injunction, which prevented the regulation from going into effect:  Judge Halts Overtime Regulation

The DOL under the Obama administration was not satisfied with Judge Mazzant’s ruling and filed an appeal with the Fifth Circuit Court of Appeals:  DOL Appeals Overtime Ruling  That appeal remains pending, but many attorneys believe that the DOL under the Trump administration may abandon the appeal.  I will keep you updated as the appeal progresses.

Best Lawyers in America – Employment Law – Management

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Best Lawyers recently recognized my work in the area of employment law – management.

I’m proud to announce that I have been recognized by The Best Lawyers in America® for my work in Employment Law – Management.  Here’s a link to my law firm’s announcement:  Wilmer & Lee Best Lawyers

I am also rated as an AV-Preeminent Attorney™ by Martindale-Hubbell and I have been recognized as a Mid-South Super Lawyer® in the area of employment law.

No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers. Alabama Rules of Professional Conduct Rule 7.2(e).

Is Working From Home a Reasonable Accommodation?

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Sometimes, working from home is not a reasonable accommodation under the ADA.

The Eleventh Circuit Court of Appeals recently found that an employer was not required to allow an employee to work from home as a reasonable accommodation for her pregnancy/disability.  Everett v. Grady Memorial Hosp. Corp., No. 16-13495, 2017 WL 3485226 (11th Cir. Aug. 15, 2017).

At the outset, let me stress that the reasonable accommodation analysis under the Americans with Disabilities Act is a case-by-case determination.  The Eleventh Circuit’s ruling in Everett depends on the specific facts of that case.  In other cases, involving other jobs, work-from-home might be a reasonable accommodation.  If one of your employees suffers from an impairment and asks to work from home, proceed very carefully.

In Everett, Ana Everett was employed as the Program Manager for Grady Memorial Hospital’s car seat program.  She was diagnosed with a high-risk pregnancy in February 2015 and granted FMLA intermittent leave at that time.  On April 28, 2015, Ms. Everett presented a doctor’s note placing her on “light duty.”  In May 2015, her doctor diagnosed her with an “incompetent cervix” and said she should work exclusively from home.  Grady refused to allow Ms. Everett to work from home.  Instead, Grady placed her on unpaid leave until her doctor allowed her to return to work on October 8, 2015.

Ms. Everett asserted several claims against Grady — including a claim for failure to accommodate her pregnancy/disability because she was not allowed to work from home.  This is where the fact-intensive nature of the accommodation analysis comes into play.  The issue was whether Ms. Everett could perform the essential functions of her job if she worked from home.  In short, the Eleventh Circuit reviewed the relevant facts and found that teaching courses, supervising employees and meeting with patients were essential functions of the job.  Ms. Everett could not perform those essential functions if she worked from home.

Ms. Everett argued that Grady could assign those job duties to another employee as a reasonable accommodation, but the Eleventh Circuit rejected that argument.  “‘[T]he ADA does not require the employee to eliminate an essential function of the plaintiff’s job’ or place it upon someone else.”  Everett, 2017 WL 3485226 at *5.

Again, the Eleventh Circuit’s decision in Everett relied upon the fact that Ms. Everett’s presence at the work site was crucial to teach courses, supervise employees and meet with patients.  In other cases, particularly in those involving computer-intensive jobs, it might be reasonable to allow an employee with an impairment to work from home.

Charlottesville: Terminating Neo-Nazi Employees

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In most circumstances, it is permissible for an employer to terminate an employee based upon disruptive political views.

John Heyman at Workforce Magazine just wrote a great article on legal issues arising from termination of employees with repugnant political views:  When You Discover That You Employ a Nazi  In short, Mr. Heyman endorses an employer’s right to terminate employees with Neo-Nazi beliefs.

Mr. Heyman’s analysis applies equally-well in Alabama.  As I’ve written on numerous occasions, employees in Alabama possess very few legal rights, because Alabama is an “employment-at-will” state.  This means that an employee, who does not possess a written employment contract, can be fired for a good reason, a bad reason, or no reason at all.  Of course, federal law can overrule Alabama’s general employment-at-will rule.  As a result, employers in Alabama cannot terminate employees who are protected by a federal law.  Thus, many forms of discrimination are prohibited in Alabama, because they are barred by federal laws like Title VII of the Civil Rights Act, the Americans with Disabilities Act and the Age Discrimination in Employment Act.

Mr. Heyman’s article notes that employees expressing political views on their own time may receive protection from the National Labor Relations Board.  So, there may be some circumstances when employers in Alabama would be ill-advised to terminate employees based upon their political beliefs.  Also, governmental-employers face additional obstacles.  The First Amendment to the United States Constitution protects freedom of speech.  But, the First Amendment only protects citizens from invasion of their rights by government.  In most cases, private employers are not required to give employees free speech rights.  But, the First Amendment generally prohibits governmental employers for terminating employees based upon their political viewpoints.

You Can’t Sue a Dog for Negligence

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Police dogs cannot be sued for negligence.

Police departments frequently get sued by people they arrest.  Usually, the police officer performing the arrest also gets sued.  Recently, the Eleventh Circuit Court of Appeals held that a police dog could not be sued for his conduct in the course of an arrest.  Jones v. Officer S. Fransen, 857  F.3d 843 (11th Cir. 2017).  “Draco” is a police canine who was involved in the arrest of Randall Kevin Jones.  Mr. Jones sued Draco, several police officers and Gwinnett County Georgia after Draco “savagely attacked and tore” Jones’s arm.

Ultimately, the Eleventh Circuit found that Draco could not be sued, because Georgia law on negligence only permitted a suit against a “person.”  But, Judge Rosenbaum’s introduction to the case is a thoroughly-entertaining piece of legal writing:

In history and literature, the name “Draco” has been associated with some notorious characters. Draco of ancient Greece is perhaps best known for the harsh legal code he composed, which inspired the word “draconian.” Antonios Loizides, Draco’s Law Code, Ancient History Encyclopedia http://www.ancient.eu/Dracos_Law_Code/ (last visited May 12, 2017). Draco Lucius Malfoy, of course, is Harry Potter’s perpetually maleficent rival in the Harry Potter literary series.

And to the list of infamous Dracos, add Defendant–Appellant Draco. Draco is a police canine who was involved in the apprehension of Plaintiff Randall Kevin Jones. Unfortunately, Draco inflicted some serious damage on Jones when Draco refused to release his bite. Jones sued Draco, among others, for negligence. Georgia law by its terms, however, does not provide for negligence actions directly against dogs. We therefore hold as much today and reverse the district court’s denial of Defendant–Appellants’ motion to dismiss Draco.
Jones, 857 F.3d at 847-48.  Most of the Jones opinion was devoted to serious issues of law concerning the liability of Draco’s handler.   But, as the introduction indicates, the Court seemed to be amused by the attempt to directly sue a dog.  Later in the opinion, the Court noted the practical problems of serving a dog with a complaint, securing legal representation for a dog and determining a dog’s intent.  In short, Jones is a victory for police departments, K-9 officers, and dog-lovers everywhere.

 

Independence Day: The Intersection of Military Service and Holidays

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Members of the U.S. Military have rights that come into play on Independence Day.

Happy Independence Day!  To celebrate our country’s 241st birthday, I did a little searching for cases where the Fourth of July played a role in employment law decisions.  I found two cases (one old and one new) which were interesting.  Both cases involve the rights of servicemen.

Eager v. Magma Copper Co., 88 S.Ct. 503 (1967), required the United States Supreme Court to interpret the Universal Military Training and Service Act (“UMTSA”).  The UMTSA was a predecessor statute to the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).  Stephan Eagar worked for Magma Copper Company from March 12, 1958 until March 6, 1959 — when he left to enter military service.    He returned to work immediately after his service on May 2, 1962.  He sued when Magma Copper did not pay him for vacation pay for Memorial Day and Independence Day in 1962.  Magma Copper’s Collective Bargaining Agreement only permitted vacation pay for those holidays if the employee was on the payroll three straight months prior to the holidays.  Because Eagar was in military service during the three months prior to Memorial Day and Independence Day, Magma Copper contended that he was not entitled to vacation pay.  The Supreme Court found that Eager was entitled to be paid  because the UMTSA required that he be treated as if his had kept his position continuously during his stint in the Army.  USERRA contains substantially similar provisions.  So, Eager provides a valuable lesson to employers today:  the terms of a collective bargaining agreement cannot override an employee’s rights under USERRA.

Ashman v. Winnebago County Sheriff’s Dept, No 11 C 50388, 2015 WL 641784 (N.D. Ill Feb. 13, 2015) involved a direct interpretation of USERRA rights.    Matthew Ashman was employed as a corrections officer by the Winnebago County Jail, and he was also a member of the Illinois National Guard.  He was called to duty with the National Guard for the period of June 30, 2008 to July 11, 2008, and he reported for duty after notifying his employer.  Mr. Ashman’s unit commander granted leave for all members for the period of July 4 to July 7 to celebrate the Independence Day holiday.  But, while on leave, unit members were subject to recall.  Retroactively, in an effort to avoid paying unit members for the holiday, the Department of Military Affairs issued orders stating that Ashman only was ordered to service for June 30 to July 3 and July 8 to July 11.  When Ashman’s supervisor received those revised orders, Ashman was terminated for missing an assigned work shift on July 7, 2008.  After a thorough analysis, Judge Frederick J. Kapala concluded that Mr. Ashman was subjected to discrimination based upon his military service, and ruled in his favor.

The best lesson that can be learned from Eagar and Ashman is to proceed cautiously when making employment decisions that are related in any manner to an employee’s military service.  USERRA provides substantial rights to employees who also serve our country.  As we celebrate Independence Day, we should be thankful for the service of members of the U.S. Military, and also be mindful of their rights.

 

 

Work Rules: Don’t Be Nice….Be Consistent!

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Employers should be consistent in the application of work rules.

No good deed goes unpunished.  If employers are lenient in application of their work rules, employees can attempt to take advantage at a later date.  One Alabama employer learned that lesson the hard way recently.  See Foster v. North American Bus Industries, Inc., No. 1150716, 2017 WL 1534547 (Ala. Apr. 28, 2017).  The employee in Foster arguably suffered an on-the-job injury.  The employer’s policy required all employees to call their supervisor at least thirty minutes before their shift in the event of an absence.  Failure to telephone in advance of two consecutive shifts would result in termination.

In the course of receiving medical treatment for the alleged work injury, the employee in Foster failed to directly telephone her supervisor on two consecutive days in advance of an absence.  The employer terminated the employee, who promptly sued for retaliatory discharge under Alabama Code Section 25-5-11.1.  The employer was able to convince a trial judge that the employee was fired because of the call-in policy. But, the Alabama Supreme Court reversed and ordered the case to trial.

In particular, the Supreme Court relied upon evidence that the employer did not consistently enforce the call-in work rule.  The employer claimed that it terminated the employee, because she did not call-in before shifts on July 23 and 24, 2012.  But, the employee offered evidence showing that the employer excused her absence on July 19, 2012 after her husband called-in for her — and that he called-in again before the July 23 shift.  The employee also claimed that she left a written doctor’s excuse at the employer’s guard shack on July 22, 2012.  The employer claimed that delivery of a note to the guard shack was insufficient to meet the call-in policy — but, the evidence also showed that the employer did accept such a note on July 11, 2012.

In short, the employer tried to base its termination on a strict interpretation of its call-in work rules.  Yet, earlier in its treatment of the same employee, strict compliance was not required.  The Supreme Court found that the failure to consistently apply the call-in policy could allow a jury to infer that the real reason for termination was not the call-in policy, but retaliation for a workers’ compensation claim.

The lesson to be learned from Foster is:  consistency.  If you terminate an employee for violation of work rules, you should make sure to consistently enforce the rule.  If you make exceptions to the work rules for one employee, you need to seriously consider making exceptions for other similarly situated employees.  If you don’t, you risk the possibility that an employee could accuse you of differential treatment in the future.

Teenagers: Alabama Law for Hiring Teenagers During the Summer

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Employers need to comply with Child Labor Laws before hiring teenagers for the Summer.

It’s the end of the school year, and many teenagers are looking for summer employment.  Employers should make sure that they are in compliance with Alabama’s child labor laws before hiring any teenagers.  The Alabama Department of Labor has published a child labor law pamphlet which provides some insight.  It can be found here:  Child Labor Pamphlet.  Among the highlights of Alabama law are the following:

  1. Employers must obtain a Child Labor Certificate from the Department of Labor before employing teenagers.
  2. If an employer hires a teenager under age 16, then the employer must obtain an Eligibility to Work form from the teenager’s school.
  3. Employers must post a Child Labor Law poster.
  4. Employers must comply with record keeping requirements, including:
    • A copy of an Employee Information form for each teenager, which can be found here:  Employee Information Form
    • Proof of Age.  Acceptable proof of age includes a copy of a birth certificate or a driver’s license.
    • Time records showing hours worked.
  5. Employees under age 16 must receive a 30 minute break for every  5 hours worked.
  6. During the school year, no teenage employee may work between 10 p.m. and 5 a.m. on any night proceeding a school day.

In addition to Alabama law, employers should be knowledgeable of the child labor requirements from the United States Department of Labor.  The DOL has published a web page with extensive information on child labor laws.  Here is the page answering questions for non-agricultural jobs:  DOL Non-Agricultural Jobs.  Both Alabama law and federal law restrict employment of teenagers in “hazardous” jobs and employers should review the lists of hazardous positions to ensure that they are not inadvertently violating the law.  In particular, employers should be aware that employees under age 18 are prohibited from holding most jobs that require driving a motor vehicle on a public road or highway.

The foregoing discussion merely touches the high points of summer employment for teenagers, and employers should be careful to comply with the law.

LHWCA: Alabama Supreme Court Allows “Widow Maker” Case to Proceed

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The Alabama Supreme Court refused to dismiss a LHWCA case involving a piece of equipment that employees called a “widow maker.”

Last month, the Alabama Supreme Court allowed a dubious case to proceed against Austal, USA, LLC, even though it appeared to be barred by provisions of the Longshore & Harbor Workers’ Compensation Act (“LHWCA”).  Ex parte Austal USA, LLC, No. 1151138, 2017 WL 836567 (Ala. Mar. 3, 2017).  Austal is a ship-builder in Mobile, and makes littoral combat ships for the United States Navy.  The following article from AL.com provides some insight on the nature of the dispute:  Austal Widow Maker Article

The employees in Ex parte Austal claimed that they were each injured by a “Miller saw.”  According to AL.com, the Miller saw injured dozens of employees, and management began referring to it as the “widow maker.”  But, claims against employers for employment-related injuries in the shipbuilding industry are usually barred by the LHWCA.  There is an exception to that general rule:  If an employer intentionally injures an employee, the claim is not barred by the LHWCA.

So, in an attempt to avoid the LHWCA, the employees claimed that Austal supplied them with the Miller saw “with the specific intent that it would cause injury” to them.  The employees further claimed that Austal wanted to build its ships “without having to incur costs associated with finding a safer alternative method to perform the work.”  Austal moved to dismiss the employees’ complaint, but a circuit court in Mobile found that those allegations were sufficient to fit within the LHWCA exception.

Austal appealed to the Alabama Supreme Court.  Unfortunately, the Court found that it was constrained by the Rules of Civil Procedure.  At the motion to dismiss stage, which occurs at the very beginning of a law suit, the rules require that the Court accept as true everything alleged in the employees’ complaint.  Thus, the Court was forced to accept as true the allegation that Austal intentionally injured its employees.

The Court found the allegation “that a company would deliberately injury multiple specific employees … so shocking that it invites skepticism.”  The Court also found that “a specific intent or desire to cause injury to its employees is not particularly consistent with the alleged cost-saving motivation for causing such injuries.”  Nevertheless, the Court refused to dismiss the complaint, because “there is at least some possibility that those allegations are true.”

As a result of the Supreme Court’s ruling, the case will proceed in Mobile County Circuit Court.  The employees will be required to produce evidence of an actual intent to injure each of them.  If they fail to produce such evidence, the trial court will most likely dismiss the case at the summary judgment stage.  At that stage, the court is not required to believe the employee’s mere statement of facts.  Instead, the employee must provide actual evidence of an intent to injure.  If that evidence is lacking, the court can dismiss the case.

Federal Contractors:Trump Will Enforce Obama LGBT Executive Order

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President Trump will leave intact an Obama-era executive order prohibiting LGBT discrimination by federal contractors.

Yesterday, the White House issued a statement that President Trump will continue to enforce an Obama-era executive order prohibiting discrimination by federal contractors against LGBT employees.  The statement can be found here: https://www.whitehouse.gov/the-press-office/2017/01/31/president-donald-j-trump-will-continue-enforce-executive-order

A good discussion of the statement can be found at the web site for The Hill: http://thehill.com/homenews/administration/317026-white-house-trump-will-continue-to-enforce-lgbtq-workplace

Last year, LGBT issues were frequently in the headlines, and I wrote about some of those issues here (Emerging LGBT Issues) and here (EEOC – Transgender Bathrooms).  In particular, President Obama’s Executive Order 13672 prohibits transgender discrimination by federal contractors.  The United States Department of Labor has prepared a Fact Sheet interpreting that order, which provides:

Under the Final Rule, contractors must ensure that their restroom access policies and procedures do not discriminate based on the sexual orientation or gender identity of an applicant or employee. In keeping with the federal government’s existing legal position on this issue, contractors must allow employees and applicants to use restrooms consistent with their gender identity.

That fact sheet can be found here:  DOL Fact Sheet on LGBT Discrimination

The White House statement is just that — a statement.  It provides some guidance to federal contractors who employ members of the LGBT community.  Nevertheless, as The Hill notes, the statement merely promises to keep the executive order “intact.”  There is still some speculation that the order might be edited or revised to increase religious exemptions.