Assault by the Department Store Santa: A Cautionary Tale

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A department store was found responsible for injuries caused by Santa Claus

Merry Christmas!  At about this time last year, I tried to provide some insight on the dangers of Christmas hams in the workplace:  The Dangers of Christmas Hams.  This year, in my never-ending quest to provide hard-hitting legal updates, I bring you a cautionary tale of assault by a department store Santa Claus:  Honeycutt v. Louis Pizitz Dry Goods, Co., 235 Ala. 507 (Ala. 1938).

This case is from 1938, so it’s what a lawyer might call “well-established law.”  As part of its holiday advertising, the Pizitz Department Store in Birmingham sent out into the community a truck with a full band playing music and an employee dressed as Santa Claus.  The band attracted a crowd and the Santa Claus threw presents and candy.  Unfortunately, an “all day sucker” struck Mrs. Linnie Honeycutt in eye.  Here is the Supreme Court’s recitation of the facts:

The evidence is without dispute that the defendant’s advertising scheme attracted several hundred women and children, who surrounded the truck carrying the band; defendant’s servant dressed as Santa Claus. That some of those in the crowd stood from seventy to seventy-five feet away from the truck; and that defendant’s servant standing in the truck threw with great force the articles being distributed into the crowd, and one of said “lollypops” struck plaintiff in the eye, producing an abrasion of the sclera of the eyeball across the pupil, resulting in an infection causing much pain and suffering and, there is evidence tending to show, causing partial dimness of the sight necessitating the use of spectacles which plaintiff had not before had to use.

Honeycutt, 235 Ala. at 509 (emphasis added).

A jury found in favor of Mrs. Honeycutt and Pizitz appealed, arguing that this was just an “accident.”  Unfortunately, the Supreme Court disagreed:  “If the missiles thrown — the lollipops — were of such nature and character as that they were liable to produce injury, and were thrown into the crowd of women and children with such force as to cause injury, the jury was warranted in finding the defendant liable under the [claim of assault and battery].”

The Honeycutt case doesn’t provide any earth-shaking principles of law.  But, it does reinforce one lesson which employers should already know:  employers can be held responsible by a jury for the actions of their employees — even if the employee is Santa Claus.

I hope you have a wonderful Holiday Season.!

Taxpayer Can Sue to Void “Illegal” Government Employment Contract

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If a governmental entity enters into a “illegal” employment contract, Alabama taxpayers can sue to void it.

Last week, the Alabama Supreme Court ruled that Alabama taxpayers can sue to void “illegal” government employment contracts.  Ingle v. Adkins, No. 1160671, 2017 WL 5185288 (Ala. Nov. 9, 2017).  At issue was an employment contract between the Walker County Board of Education and the Superintendent of the Walker County Schools.  After he was re-elected as Superintendent in 2014, Jason Frank Adkins signed an employment contract with the Walker County school board.  The contract provided:  a $159,500 salary with annual pay raises; a $1,000 per month travel stipend; reimbursement for a cell phone; and, a promise to allow him to return to his previous job as a tenured employee.

Apparently, Sheila Mote Ingle thought that contract was excessive.  So, she sued, claiming that, as a taxpayer, she was entitled to have the “unconstitutional, illegal and void” contract vacated.   Ms. Ingle also sought to recover monetary amounts that she claimed were improperly paid to Mr. Adkins.  Mr. Adkins and the school board immediately moved to dismiss Ingle’s law suit.  They claimed that the Alabama Constitution of 1901 confers immunity from law suits to them, and that Ms. Ingle had no “standing” to challenge the contract, because she was not a party to it.  Without giving a specific reason, a trial court in Walker County granted that motion to dismiss and Ms. Ingle appealed.

The Alabama Supreme Court found that Ms. Ingle was entitled to pursue her claims to vacate the contract, but not her claims for money.  The Court reiterated a string of cases holding that Alabama School Boards and Superintendents are absolutely immune from claims for money damages under the Alabama Constitution.  But, the Court refused to extend that immunity to claims for declaratory and injunctive relief.  In short, the Court found that immunity could not bar Ms. Ingle’s claim to have the employment contract declared invalid.

The Supreme Court also rejected the Board’s standing defense.  The Court found that its cases have “continually held that taxpayers have standing to seek an injunction against public officials to prevent illegal payments from public funds.”

Accordingly, the Supreme Court reversed dismissal of Ms. Ingle’s case to allow her to pursue her theory that the contract between Mr. Adkins and the School Board is illegal.  At the same time, the Court refused to comment on whether her actual theories had any merit.  That decision will come at a later date after the parties fully litigate the issue.

President Trump Not Responsible for Discrimination by Employers

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President Trump’s transgender ban does not injure individuals who suffer discrimination from private employers.

A federal judge in Alabama ruled last week that President Donald Trump is not legally responsible for potential discrimination by private employers.  See Williamson v. Trump, No. 7:17-01490-LSC, 2017 WL 4536419 (N.D. Ala. Oct. 11, 2017).  On August 15, 2017, President Trump issued a Presidential Memorandum for the Secretary of Defense and Homeland Security.  That memorandum prohibits accession of transgender employees in the United States military and authorizes the discharge of such individuals.  Cassandra Williamson is a transgender veteran living in Tuscaloosa, Alabama.  Ms. Williamson sued, claiming that the memorandum violated her rights to equal protection under  the United States Constitution.

Ms. Williamson did not argue that she is a part of the class of military personnel directly affected by the memorandum.  Instead, she claimed that President Trump’s memorandum had an immediate and chilling impact on her “ability to get work,” because it was “seen by the community and prospective potential employers … as justification to not consider her for employment and to mistreat her when she goes out to get food, go to church, and deal with other issues in the community, or even to walk her dog.”

United States District Court Judge Scott Coogler dismissed Ms. Williamson’s complaint.  Judge Cooger relied upon a legal doctrine called “standing.”  In summary, the standing doctrine required Ms. Williamson to demonstrate that she was injured by President Trump’s memorandum, and that the court could prevent future injuries.  Ms. Williamson’s complaint failed to surmount that obstacle:  “Plaintiff’s allegations are that employers, not the President, have caused an injury to Plaintiff through employment discrimination.  Although the memorandum does order that the accession of transgender persons in the military eventually be ceased, it in no way directs the hiring practices of private individuals or companies.”

Ms. Williamson lost her case because she is not directly affected by the memorandum.  Several other law suits have been filed in other parts of the country directly challenging the ban on behalf of service members.  The United States Department of Justice filed a motion two weeks ago seeking to have one of those cases dismissed.  Here’s a link discussing that motion.  DOJ Moves To Dismiss Transgender Ban Lawsuit.

Workers’ Comp: A Replacement Machine Is Not a “Safety Device”

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The Alabama Supreme Court held that failure to install a replacement machine is not equivalent to removal of a “safety device.”

Alabama’s Workers’ Compensation Act provides employers with an interesting trade-off.  Employees who are injured on the job are entitled to have their medical bills paid by the employer and receive compensation for any resulting disability.  But, the amount of disability benefits are specifically set-out and limited by the Act.  Workers’ Compensation is a no-fault system.  If an employee is injured, he or she is entitled to benefits.  Here’s the trade-0ff.  In the vast majority of cases, the Workers’ Compensation Act prohibits employees from suing their employer for negligence, wantonness or punitive damages.  In short, the Workers’ Compensation Act makes it easier for employees to recover for their injuries, but limits the ability of employees to sue their employers and the amount they can recover.

Of course, there are always exceptions to any law.  The Workers’ Compensation Act also recognizes a limited set of cases in which the employee can sue his or her co-employees for punitive damages.  If a co-employee engages in “willful conduct” that causes injury to another employee, the co-employee can be sued.  Generally, the Act recognizes four types of “willful conduct”:  (1) acting with a purpose, intent or design to injure another; (2) willful and intentional removal from a machine of a safety guard or safety device provided by the manufacturer of the machine with knowledge that injury or death would likely or probably result from the removal; (3) intoxication that causes injury or death of a co-employee; and, (4) willful and intentional violation of a specific written safety rule of the employer after written notice.

Over the years, employees have attempted to expand the reach of those four examples of “willful conduct.”  Last week, the Alabama Supreme Court rejected such an attempt in Saarinen v. Hall, No. 1160066, 2017 WL 3821732 (Ala. Sep. 1, 2017).  In that case, Louis Hall was injured by a power saw, which was manufactured with a guard that was insufficient to protect Hall.  At least a month before he was injured, his employer purchased a replacement saw with a better guard from  a different manufacturer.  But, the replacement saw was not installed because his employer was too busy to change out the saws.

Hall injured his hand on the saw with the insufficient guard, and then sued his supervisors for “willful conduct.”  Hall claimed that their failure to install the new saw was equivalent to the willful and intentional removal of a safety guard.  The Alabama Supreme Court rejected that argument:  “Under the facts in this case, the failure to install another, presumably safer, saw that was present on the premises but that had not been put into operation and that was manufactured by a different manufacturer than the saw that injured the plaintiff is not the equivalent of the removal of a safety guard so as to constitute willful conduct ….”  Saarinen, 2017 WL 3821732 at *3.  Interestingly, the Supreme Court expressly refused to decide whether the failure to install a replacement machine manufactured by the same manufacturer might be equivalent to removal of a safety device.

 

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.