11th Circuit Archives - Employing Alabama

Employer Pays $25K in Arbitration Admin. Fees for $7K FLSA Claim.

August 13, 2018Robert C. Lockwood

Fees arbitration cost FLSA Alabama Employment Law — Sometimes, the fees associated with arbitration will cost more than the actual claim made by the employee.

Just because you’ve got the right to arbitrate a claim doesn’t mean that you have to arbitrate that claim. If you’ve read my blog before, you know that arbitration is a great form of alternative dispute resolution for many claims. But, employers should think carefully before arbitrating employment disputes: Arbitration Isn’t Always Good for Employers. In conducting that analysis, one factor for employers to consider is the amount of fees that they will pay to an arbitrator in comparison to the value of the employee’s claim.

In Hernandez v. Acosta Tractors, Inc., No. 17-13057, 2018 WL 3761126 (11th Cir. Aug. 8, 2018), the Eleventh Circuit Court of Appeals confronted an employer who was having second-thoughts about the wisdom of arbitrating a claim under the Fair Labor Standards Act. (“FLSA”). Julio Hernandez claimed that his employer, Acosta Tractors, failed to pay him overtime. Mr. Hernandez sued in federal court and Acosta Tractors moved to dismiss the case because he signed an arbitration agreement. The judge agreed, and dismissed Mr. Hernandez’s case in favor of arbitration.

Acosta Tractors soon began to experience sticker-shock with the arbitration process. Mr. Hernandez was one of three employees who were arbitrating FLSA claims. Acosta Tractors asked the arbitrator to consolidate the three proceedings into one, but the arbitrator refused. The arbitrator also ordered 29 depositions to be taken in the three separate proceedings.

At this point, I need to be clear: an arbitrator is essentially a paid judge. Every time the arbitrator works on a case, he bills the parties for his work — usually at rates of $350.00 per hour or more. Additionally, if a third-party organization, like the American Arbitration Association is involved, they will charge for their work on the case. As a result, administrative fees quickly add up.

In Acosta Tractors’ case, it received bills for administrative fees in the amount of $33,100 and $43,640 in the other two cases, and $25,875 in Mr. Hernandez’s case. At this point, faced with over $100,000 in administrative fees, Acosta Tractors cried “uncle,” and tried to go back to federal court. It refused to pay the arbitration fees, and asked the federal judge to re-assert control over the case. But, the judge was not pleased. He found that Acosta Tractor defaulted in arbitration, and thus was also in default in federal court. Ultimately, the judge entered a default judgment in Mr. Hernandez’s favor in the amount of $7,293.00.

On appeal, the Eleventh Circuit vacated the judge’s ruling for further consideration. The Eleventh Circuit found that the trial judge should not have entered a default judgment based solely upon the failure to pay administrative fees in arbitration. Instead, the Eleventh Circuit directed the trial judge to determine whether Acosta Tractors “acted in bad faith in choosing not to pay its arbitration fees.” The court suggested that a “good faith inability to afford the arbitration fees” would be a factor in Acosta Tractors’ favor, but also noted that its decision “to abandon arbitration after getting adverse rulings from the arbitrator certainly looks like forum shopping.”

To me, the biggest lesson for employers to learn from Hernandez is: “look before you leap.” Arbitration is going to be expensive for everybody involved. In Mr. Hernandez’s case, Acosta Tractors was billed $25,875 in administrative fees on an overtime claim that was worth $7,293. With the benefit of hindsight, it looks like Acosta Tractors could have saved money by keeping this FLSA case in federal court.

ADA: Reasonable Accommodations Have Limits

July 11, 2018Robert C. Lockwood

ADA ADAAA reasonable accommodations allergies Alabama Employment Law — The ADA only requires reasonable accommodations, not the accommodation of an employee’s choosing.

A recent decision from the Northern District of Alabama reinforces that the Americans with Disabilities Act (“ADA”) does not guarantee disabled employees an accommodation of their choosing. Instead, accommodations offered by an employer only need to be “reasonable.” See Maddox v. ALDOT, No. 2:15-cv-00312-MHH, 2018 WL 3241212 (N.D. Ala. Jul. 3, 2018).

In Maddox, the employee suffered from allergies to dust and asphalt, and also worked for the Alabama Department of Transportation (“ALDOT”). ALDOT provided numerous accommodations to Ms. Maddox. ALDOT allowed her to leave work anytime asphalt fumes affected her breathing. It provided an air purifier and replaced the air ventilation system in Ms. Maddox’s building. ALDOT even relocated an asphalt lab to the rear of the building in which Ms. Maddox worked. ALDOT also offered to transfer Ms. Maddox to a different office in Shelby County, but Ms. Maddox declined and requested a transfer to ALDOT’s main office in Montgomery. However, the main office was undergoing mold remediation and ALDOT would only permit the transfer if her doctor stated that the main office would be a safe environment. When Ms. Maddox’s doctor declined to issue such an opinion, she argued that ALDOT should allow her to take sick leave until a clean-air environment could be created. ALDOT declined to provide such leave.

Ms. Maddox sued under the ADA claiming that ALDOT failed to provide a reasonable accommodation for her alleged disability. For purposes of deciding the case, United States District Court Judge Madeline Hughes Haikala assumed that the allergies amounted to a “disability” under the ADA. Nevertheless, Judge Haikala focused upon the fact that the ADA only requires “reasonable accommodations.” Indeed, it is well-established that a qualified individual with a disability is “not entitled to the accommodation of her choice, but only a reasonable accommodation.” Stewart v. Happy Herman’s Chesire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir. 1997).

Judge Haikala noted her sympathy with Ms. Maddox’s frustration, but held that the ADA “does not require an employee to create an environment completely free of fumes, dust, mold or other allergens to accommodate an employee’s health condition.” Judge Haikala found that ALDOT’s proffered accommodations were reasonable; therefore, she dismissed Ms. Maddox’s case.

Maddox provides excellent guidance for employers struggling to accommodate employees’ health conditions. In most cases, employers should follow ALDOT’s lead and attempt to find some solution/accommodation for the employees’ health issues. But, at some point, requested accommodations cross the line from “reasonable” to unreasonable. In those cases, the employer’s other efforts to provide reasonable accommodations can help prove that the employee’s requested accommodation is not reasonable.

****For lawyers/lovers of the law**** Maddox was decided under Section 504 of the Rehabilitation Act of 1973. In employment cases, the standards of the Rehabilitation Act are the same as the standards applied under Title I of the ADA.

FLSA: Law Enforcement Not Entitled to Pay for Certain Activities

July 10, 2018July 10, 2018Robert C. Lockwood

FLSA law enforcement donning doffing Alabama Employment Law — Under the FLSA, law enforcement officers are not entitled to compensation for the time they spend donning protective gear before work, or for the time they spend commuting to and from work.

The Eleventh Circuit has found that law enforcement officers are not entitled to pay for certain activities that occur before and after their work shifts. See Llorca v. Sheriff, Collier County, No. 17-11377, 2018 WL 3134544 (11th Cir. Jun. 27, 2018). In particular, the Fair Labor Standards Act (“FLSA”) does not require compensation to law enforcement for: (1) putting on and taking off protective equipment (“donning and doffing”) before and after a work shift; or, (2) commuting to and from work in a marked patrol vehicle.

The Portal-to-Portal Act of 1947, as amended by the Employee Commuting Flexibility Act of 1996, provides that an employer is not required to pay employees for time travelling to and from work, or for activities that are “preliminary to or postliminary to” the “principal activity” of the job. The United States Supreme Court has further found that preliminary or postliminary work is only compensable if it is an “integral and indispensable part of the principal activities.” The Eleventh Circuit’s decision in Llorca focused on the “integral” and “indispensable” standards.

The employees in Llorca were Deputy Sheriffs in Collier and Lee County, Florida. They were required to arrive at work wearing the following protective gear: a “duty belt,” a radio case, pepper mace, a baton strap, a magazine pouch, a radio, a flashlight, handcuffs, a holster, a first-responders pouch, and a ballistics vest. They also commuted to and from work in marked patrol vehicles. The Sheriffs required their deputies to listen to radio calls while commuting, and respond to major calls and emergencies. The deputies were also required to observe the roads for traffic violations and engage in general traffic law enforcement. While the deputies were compensated for any time responding to emergencies and enforcing traffic laws, they were not compensated for time commuting while listening to their radios and observing the roads.

The Eleventh Circuit found that donning and doffing protective gear is not “integral” to a law enforcement officer’s principal activities. The gear itself might be “indispensable” to a deputy. But, the donning and doffing process is not an intrinsic element of law enforcement. The Court was particularly persuaded by a 2006 Department of Labor memorandum finding that donning and doffing might be compensable “where the changing of clothes on the employer’s premises is required by law, by rules of the employer, or by the nature of the work.” But, “if employees have the option and the ability to change into the required gear at home, changing into that gear is not a principal activity, even when it takes place at the plant.”

The Eleventh Circuit found that listening to the radio for calls and general traffic monitoring were not “indispensable” activities for deputies. The court first relied upon a policy argument, noting that “traffic violations multiply if there is an appearance among the public that traffic enforcement is law. Thus, it would be highly inappropriate for uniformed officers to drive to and from work in marked patrol vehicles without observing the roads for traffic violations and other incidents.” The Court also relied upon a DOL regulation holding that a police officer “is not working during the travel time even where the radio must be left on so that the officer can respond to emergency calls.” 29 C.F.R. § 553.221(f).

The Llorca opinion is a significant win for employers in law enforcement. Additionally, it provides additional guidance to all employers on “donning and doffing” requirements.

ADA: Disabled Employees Must Meet Productivity Standards

April 23, 2018Robert C. Lockwood

ADA ADAAA disability productivity Alabama Employment Law — Disabled employees must meet the same productivity standards as other employees.

The Americans with Disabilities Act (“ADA”) is intended to ensure that individuals with disabilities do not suffer discrimination in the workplace. Even so, the ADA does not grant special status to individuals with disabilities, so that they are treated more favorably than other employees. One of the key requirements of any workplace is productivity. Disabled employees must meet the same productivity standards as other employees.

This concept is acknowledged even by the EEOC: “An employee with a disability must meet the same production standards, whether quantitative or qualitative, as a non-disabled employee in the same job.” The EEOC’s entire discussion of performance standards can be found here: Applying Performance And Conduct Standards To Employees With Disabilities. As you probably know, the ADA requires that “reasonable accommodations” must be made for disabled employees. But, the EEOC also acknowledges that an employer is not required to decrease productivity standards as an “accommodation”: “Lowering or changing a production standard because an employee cannot meet it due to a disability is not considered a reasonable accommodation.”

The Eleventh Circuit Court of Appeals recently upheld productivity requirements in Singleton v. The Public Health Trust of Miami-Dade County, No. 17-12282, 2018 WL 679389 (11th Cir. Feb. 2, 2018). In Singleton, a physician was required to treat a minimum number of patients each day. Yet, it was undisputed that he was unable to meet those productivity requirements. As a result, even though the physician may have been “disabled,” he was not a “qualified” individual with a disability. A “qualified” individual must be able to perform the essential functions of the job. Because productivity was an essential function, and the physician could not perform that function, he could be terminated without violating the ADA.

Employers should always proceed cautiously when contemplating the termination of a disabled employee. In fact, the EEOC suggests that an employer might have a duty to eliminate “marginal” functions of a job in order to assist an employee in meeting productivity requirements. Therefore, I strongly encourage Alabama employers to conduct a thorough analysis before terminating a disabled employee.

Title VII: Being a Jerk Is Not Discrimination

April 9, 2018Robert C. Lockwood

Title VII jerk harassment Alabama Employment Law — Title VII does not protect employees from bosses or co-workers who are jerks

Employees frequently think that they should be able to sue under Title VII of the Civil Rights Act of 1964 because their boss, or a co-worker, is mean to them. I frequently hear the complaint: “I’m being harassed, and that’s illegal!” In the employment law context, however, there is nothing illegal about being a jerk. In fact, there is nothing illegal about harassing employees — unless that harassment is bad-enough and based upon a protected characteristic like race, sex or age. Being a jerk generally does not violate any employment laws.

At the outset, let’s be clear. Sexual harassment, racial harassment or harassment based upon any other protected characteristic will get you sued. But, even that harassment must be so severe and pervasive that it alters an employee’s terms and conditions of employment. There is abundant case law holding that Title VII is not a general civility code. It is not designed to make sure that people “get along” in the workplace. Instead, Title VII is supposed to prevent discrimination at work. Sometimes, there’s a fine line between behavior that’s boorish and behavior that will violate the law. Some obvious examples of conduct that will get you sued, however, are repeated use of the “N” word toward African-American employees, and touching a female employee in a sensitive location.

An employee must suffer an “adverse employment action” to possess a claim under Title VII. Such an action must have a tangible adverse effect on the plaintiff’s employment. As a result, giving discriminatory job assignments, in many cases, won’t be illegal. Similarly, just being mean to an employee, even if based on a protected characteristic, does not violate Title VII. For example, last year, the Eleventh Circuit affirmed dismissal of a Title VII action filed against the Post Master General. See Coles v. Post Master General, 711 Fed. Ap’x 890 (11th Cir. 2017). In that case, a postal employee claimed she was subjected to age and race discrimination because: her vehicle was searched at work; an investigation was conducted into her work absences; and, she was assigned “culling belt work” (an unfavorable assignment). The Eleventh Circuit found that treatment was not an “adverse employment action” under Title VII.

The foregoing observations on the state of the law are not intended to encourage employers to be jerks to their employees. Indeed, positive morale is a vital component of any workplace. Moreover, sometimes a court will allow an employee to sue for “constructive discharge.” A constructive discharge occurs when an employer makes an employee’s working conditions so intolerable that an employee is compelled to resign. In short, if an employer is too much of a jerk, and the employer’s conduct is aimed at a protected characteristic, an employee may be able to sue — even if they resign.

Use of the Term “Boy” Creates Race Discrimination Problems

January 19, 2018Robert C. Lockwood

boy African American context Alabama Employment Law — Depending on context, calling an African-American employee “boy” might be discriminatory.

When dealing with workplace conduct, context is everything. Recently, the Eleventh Circuit affirmed dismissal of a race-based retaliation claim, even though a supervisor called an African-American employee “boy.”

At the outset, let me stress that employees should be strongly discouraged from using the term “boy” in the workplace. This term has created a very difficult area of the law. “[T]he use of the word ‘boy,’ when directed by a non–African American to an African–American, is potentially racially hostile.” Craig v. Alabama Power Co., 2010 WL 11561855 (N.D. Ala. Sep. 21, 2010). Even so, the Supreme Court has explained that a supervisor referring to an African–American plaintiff as “boy” “will not always be evidence of racial animus” and that such factors as “context, inflection, tone of voice, local custom, and historical usage” are consulted to assess whether it is evidence of discriminatory animus in a particular case. Ash v. Tyson Foods, Inc., 546 U.S. 454, 456, 126 S.Ct. 1195, 163 L.Ed.2d 1053 (2006).

The importance of context is evident in the Eleventh Circuit’s recent decision in Bell v. City of Auburn, No. 17-11597, 2018 WL 388484 (11th Cir. Jan. 12, 2018). In Bell, Shawn Bell claimed that the was terminated in retaliation for complaining to human resources that his supervisor called him “boy.” But, Mr. Bell was required to give deposition testimony as part of his law suit. During that deposition, Mr. Bell said that “the comment discredited his manhood, that he was a man, and that he did not think a man should talk to another man like that.” When asked if the supervisor was “being racial” when he called him boy, Bell answered: “No.”

To succeed on a retaliation claim, Mr. Bell was required to show that he subjectively believed that he was reporting racial discrimination when he complained to human resources. But, the Eleventh Circuit found that Mr. Bell’s own testimony demonstrated that he did not possess such a subjective belief. Instead of believing that the term insulted his race, Mr. Bell believed it insulted his manhood.

The City of Auburn may have dodged a bullet in the Bell case. To avoid these types of issues, I strongly recommend that employers discourage the use of the term “boy” in the workplace.

Supreme Court Won’t Review 11th Circuit LGBT Decision

December 11, 2017Robert C. Lockwood

Supreme Court LGBT Alabama Employment Law — The United States Supreme Court Declined to Hear an LGBT Discrimination Case

This morning, the United States Supreme Court announced that it would not review a decision from the Eleventh Circuit Court of Appeals, which held that sexual orientation is not protected by Title VII of the Civil Rights Act of 1964.

Jameka Evans is lesbian. After she was terminated from her position as a security guard, she filed a pro se (without a lawyer) lawsuit claiming that she was terminated because of her sexual orientation. Her case drew the attention of the Lambda Legal Defense and Education Fund and the United States Equal Employment Opportunity Commission, which helped her to argue the case as amicus curiae (friends of the court). A panel of the Eleventh Circuit ruled that Title VII of the Civil Rights Act does not protect against sexual orientation discrimination. But, consistent with numerous prior decisions, the Court also held that Ms. Evans could sue for discrimination based upon “gender nonconformity.”

Lambda Legal asked the Supreme Court to review the Eleventh Circuit’s decision, but the Court declined to do so this morning. Here’s an article from The Hill discussing the decision: Supreme Court Refuses to Hear LGBT Workplace Discrimination Case.

The Evans decision is consistent with a long line of precedent in the Eleventh Circuit. In fact, I previously discussed this issue here: LGBT Issues In the Workplace. Nevertheless, there may be a trend developing in other courts to protect sexual orientation under Title VII. In April, the Seventh Circuit Court of Appeals ruled that Title VII applies to such claims. Those types of conflicts between Circuit Courts of Appeals often lead to decisions by the Supreme Court. Thus, it is possible that the Supreme Court will be asked to review this issue again in the future.

Take Your Son to Work: Trainee or Employee under the FLSA?

November 20, 2017Robert C. Lockwood

Employee Trainee FLSA Alabama Employment Law — Employees are entitled to pay under the FLSA, but uncompensated trainees are not.

Under the Fair Labor Standards Act (“FLSA”) “employees” are entitled to pay, but uncompensated “trainees” are not. The Eleventh Circuit Court of Appeals recently wrestled with the issue of whether a son, who was “learning the business” from his father, was an employee or trainee. Axel v. Fields Motorcars of Fla, Inc., No. 16-13829, 2017 WL 4461014 (11th Cir. Oct. 6, 2017).

Michael Axel worked as an automobile wholesaler for Fields Motorcars. He asked the General Manager of Fields to hire his son, Scott Axel, but the General Manager claimed that Fields was not hiring any new employees. Ultimately, the General Manager and Michael agreed on an arrangement under which Michael would hire Scott as his own employee and teach Scott how to become an automobile wholesaler. Each day, Scott would arrive at work with his father, review inventory, attend a daily used-car meeting and then go to lunch. After lunch, Scott posted cars on an internet website for Fields, discussed cars that could be listed for sale, and researched cars that were for sale at auction. Over the course of his work, Scott purchased sixty or seventy cars for Fields.

After Michael was terminated from employment by Fields, Scott sued and claimed that he was an employee of Fields who was denied pay in violation of the FLSA. Fields claimed that Scott was not entitled to pay because he was an uncompensated “trainee.” A trial court in Florida agreed with that argument and dismissed Scott’s claims. The Eleventh Circuit, however, found that more information was needed.

The court’s analysis borrowed from earlier decisions analyzing whether academic “interns” were entitled to compensation under the FLSA. The “intern” test analyzes seven factors, which focus heavily on the academic nature of internships. For non-academic “trainees,” the Court focused on:

The extent to which the trainee and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the trainee is an employee — and vice versa.
The extent to which the training period is limited to the period in which the trainee receives beneficial learning.
The extent to which the trainee’s work complements, rather than displaces, the work of paid employees.
The extent to which the trainee and the employer understand that the training opportunity is conducted without entitlement to a paid job at the conclusion of training.

The results of those factors were inconclusive. The first and fourth favored Fields because Scott clearly understood that he was working without pay, and understood there was no promise of a job at the completion of training. But, the other factors somewhat favored Scott. The training period was of indefinite duration, and he did the work of other Fields employees when he did the online work for car sales.

The Court also noted that the analysis was not an “all or nothing” proposition. Scott could have been a trainee at times and an employee at others. As a result, the Eleventh Circuit vacated the dismissal of Scott’s claims and remanded the case back to the trial court.

The Axel case demonstrates how complex the issue of “interns” and “trainees” can be. If somebody is working for you without pay, you need to proceed cautiously and make sure that you are not violating the FLSA.

Halloween Costume or Transgender Presentation?

October 31, 2017Robert C. Lockwood

Halloween transgender Alabama Employment Law 11th Circuit — An employee’s Halloween “costume” might actually be their attempt to present at work as transgender person.

Happy Halloween! To celebrate the occasion, I did a little research on the intersection of employment law and Halloween in the Eleventh Circuit, and decided to discuss Glenn v. Bumbry, 663 F.3d 1312 (11th Cir. 2011). Glenn involves a transgender employee who was born as a man, but presented at work as a woman on Halloween.

Glenn was hired by the Georgia General Assembly’s Office of Legislative Counsel (“OLC”) in 2005. When hired, Glenn was presenting as a man, but had been diagnosed with Gender Identity Disorder. In 2006, Glenn informed her direct supervisor that she was transsexual and in the process of becoming a woman. On Halloween, OLC employees were permitted to attend work wearing costumes. Thus, Glenn came to work presenting as a woman. The head of the OLC, Sewell Brumby, told Glenn that her appearance was not appropriate and told her to leave the office. “Brumby stated that ‘it’s unsettling to think of someone dressed in women’s clothing with male sexual organs inside that clothing,’ and that a male in women’s clothing is ‘unnatural.'” In 2007, Glenn informed her supervisor that she would begin coming to work as a woman and was also changing her name. Brumby then terminated Glenn because he viewed the gender transition as “inappropriate,” “disruptive,” a “moral issue,” and “it would make Glenn’s coworkers uncomfortable.”

Glenn sued for sex discrimination and won at the trial level. Brumby appealed to the Eleventh Circuit Court of Appeals. In Glenn v. Bumbry, the Eleventh Circuit issued its first opinion finding that discrimination against a transgender person is impermissible. The Court found that “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender.”

I previously discussed discrimination based upon gender stereotypes here. So, if your office permits employees to dress-up for Halloween, and one of your employees shows up dressed as a member of the opposite sex, they may be protected by Title VII of the Civil Rights Act of 1964.

ADA: Extended Leave Is Not a Reasonable Accommodation

October 30, 2017Robert C. Lockwood

ADA leave of absence reasonable accommodation Alabama employment law — In the Eleventh and Seventh Circuits, an extended leave of absence is not a reasonable accommodation under the ADA.

Last week, the Eleventh Circuit found that an open-ended extension of leave without pay is not a reasonable accommodation under the Americans with Disabilities Act. See Billups v. Emerald Coast Utilities Auth., No. 17-10391, 2017 WL 4857430 (11th Cir. Oct. 26, 2017). Roderick Billups suffered an on-the-job injury on December 18, 2013 and he began FMLA leave on December 19, 2013. The FMLA 12-week period expired on March 12, 2014, while Billups was still out on leave. He underwent surgery on April 16, 2014 and on May 27, 2014 his physician restricted him to sedentary work.

In early June 2014, Billups’ employer, Emerald Coast, sent him a notice that he would likely be terminated because of his inability to perform the essential functions of his job with or without reasonable accommodation. At a “hearing” on June 19, 2014, Billups provided some evidence that he might be cleared for duty by July 15, 2014. Nevertheless, on June 23, 2014, Billups was terminated because of a continuing inability to perform the essential requirements of his job. Billups continued medical treatment and was cleared to return to work without restrictions on October 23, 2014.

In January, I discussed another case from the Eleventh Circuit (Here) finding that a leave of absence is a reasonable accommodation only if it allows employees to “perform the essential functions of their jobs presently or in the immediate future.” Because Billups received more than six months of leave before the termination decision, and could not return within the immediate future, the Court found that an extension was not a reasonable accommodation.

The Billups decision comes on the heels of a similar decision by the Seventh Circuit Court of Appeals, Severson v. Heartland Woodcraft, Inc., which is discussed here: 7th Circuit Rejects Leave as Accommodation. The Severson decision is slightly more noteworthy, because it directly addresses a policy from the EEOC requiring it as a reasonable accommodation: EEOC on ADA and Leave. The Court reasoned “[i]f, as the EEOC argues, employees are entitled to extended time off as a reasonable accommodation, the ADA is transformed into a medical-leave statute-in effect, an open-ended extension of the FMLA.”