Alabama Employment Law Archives - Page 11 of 16

Electronic Signature Can Result In Arbitration

July 22, 2016Robert C. Lockwood

application

United States District Court Judge Lynwood Smith recently found that an electronic signature on an arbitration agreement was sufficient to compel arbitration of a sexual harassment claim. Humphrey v. Cheddar’s Casual Cafe, Inc., No. 5:16-CV-00704-CLS, 2016 WL 3483168 (N.D. Ala. Jun. 27, 2016).

There is a strong federal policy favoring arbitration. Nevertheless, the party requesting arbitration must prove that a binding arbitration agreement exists. In Humphrey, the plaintiff did not explicitly deny that she completed the on-line arbitration agreement. Instead, she argued that her employer failed to meet its burden prove that she was the person who actually e-signed the agreement.

Nevertheless, Judge Smith disagreed. He found that the information surrounding the e-signature was sufficient to establish that the plaintiff e-signed the agreement. Among other things, she provided the following information contemporaneously with signing the agreement: (1) her social security number; (2) her first name, middle initial, and last name; (3) her street address; (4) her telephone number; (5) her email address; (6) her date of birth; and (7) her gender.

In summary, Humphrey demonstrates that in this age of on-line commerce, e-signatures are the functional equivalent of the “real thing.”

Judge Hopkins Certifies Overtime Class Action For Clothing Store Managers

July 19, 2016July 19, 2016Robert C. Lockwood

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Judge Virginia Emerson Hopkins recently certified a potential class action by store managers seeking overtime compensation from Cato women’s clothing stores. See Prince v. Cato Corp., No. 1:14-CV-1708-VEH, 2016 WL 2997217 (N.D. Ala. May 25, 2016). Cato contends that its store managers are “bona fide executive, administrative or professional” employees who are exempt from overtime requirements.

The request for a class action was made by Virginia Prince, a store manager at Cato’s Anniston, Alabama store. Ms. Prince claims that she was required to work at least 45 hours per week, but that the overwhelming majority of her time was spent performing manual labor instead of bona fide managerial work. A special provision of the Fair Labor Standards Act regulations permits an executive or administrative employee in the retail sector to spend up to 40% of their time on non-administrative duties without loss of the overtime exemption.

Ms. Prince asked Judge Hopkins to certify a nationwide class of Cato store managers, but Judge Hopkins declined. Instead, she certified a class solely within the Northern District of Alabama consisting of current and former store managers from September 17, 2011 to the present.

Judge Hopkins’s certification is merely the first step in the process for a potential class action. Cato obviously denies that its managers are entitled to overtime and will have the opportunity to de-certify the class at a later dater. Nevertheless, Prince provides a cautionary tale for employers. Large employers with employees performing the same duties in similar locations are potentially subject to class actions for overtime compensation under the FLSA.

$100,000 Salary and an Impressive LinkedIn Profile Not Enough to Exempt Employee from Overtime

July 15, 2016July 18, 2016Robert C. Lockwood

In a recent overtime dispute, an employer attempted to use an employee’s LinkedIn profile to establish that the employee was exempt from payment of overtime under the Fair Labor Standards Act. See Trammell v. Amdocs, Inc., No. 2:15-cv-01473-RDP, 2016 WL 3618367 (N.D. Ala. Jul. 6, 2016). Unfortunately, Judge David Proctor was forced to send the case to trial.

In Trammell, Scott Trammell worked as a Project Management Office Professional for Amdoc, Inc. and was paid more than $100,000.00 in salary in 2014. He sued for overtime after leaving Amdoc’s employment in 2015. Amdoc attempted to have the case dismissed at the summary judgment stage and argued that Trammell was exempt from overtime because he was a highly-compensated employee. But, the highly-compensated employee exemption only applies if the employee customarily and regularly performs exempt executive, administrative or professional duties.

Trammell flatly denied that he performed executive, administrative or professional duties. Instead, he claimed that he merely generated reports for his supervisor and responded to e-mail correspondence. So, Amdoc pointed to Trammell’s LinkedIn Profile which suggested that his duties included: management of seven employees and two applications; monitoring and coordinating team projects; providing end to end project management; managing team overload; providing overall delivery of multiple projects; and, coordinating, tracking and reporting IT releases.

In an entertaining opinion, Judge Proctor was forced to send the case to trial because the Federal Rules of Civil Procedure required him to believe Trammell’s denials of responsibility — even when contradicted by the LinkedIn Profile. The difficulty of Judge Proctor’s decision is found in the following passage:

Would an employer really pay someone like him over $100,000 to merely answer emails and generate reports? (If so, where can recent college graduates in the IT field obtain an Amdocs application for employment?) It might even be said that his denial lacks credibility. But it emphatically is the [jury] who must say that, not this court ruling on a motion for summary judgment.

Trammell, 2016 WL 3618367 at * 4.

Employers Relocating a Unionized Facility Have a Duty To Bargain in New Location

July 13, 2016Robert C. Lockwood

Labor

Employers relocating a unionized facility have a duty to collectively bargain with the union at the new location. See National Labor Relations Board v. Gaylord Chemical Co., No. 15-10006, 2016 WL 3127087 (11th Cir. Jun. 3, 2016). “Generally, if an employer relocates and the new plant is considered merely a continuation of the old one, the employer must continue to recognize and bargain with the union which represented the employees at the old plant.” Gaylord Chemical, 2016 WL 3127087 at *4. In determining if a new plant is a “continuation” of a closed facility, the NLRB and Courts look “to whether the employer has maintained the same ‘operational methods, managerial hierarchy, customers, and services or products,’ as well as ‘changes in either the size, makeup, or the identity of the employee complement.'” Id. at *5. Generally, if employees transferring from the closed plant constitute 40% of the new facility’s workforce, the NLRB and courts will find a continuity of workforce. Id.

In Gaylord Chemical, the employer closed a plant in Bogalusa, Louisiana and relocated it to a new plant inTuscaloosa, Alabama. Ninety percent of the employees at the Tuscaloosa plant were former Bogalusa employees. The United Steel Workers were the collective bargaining unit for the Bogalusa plant, but Gaylord Chemical refused to bargain with the USW in Tuscaloosa. In an extensive analysis, the Eleventh Circuit found that the Tuscaloosa plant was a continuation of the Bogalusa facility and that Gaylord Chemical had an obligation to bargain with the USW.

Certain parts of Alabama are perceived to be less “union friendly” than others. Thus, there might be a temptation for some employers to close unionized plants and move to those parts of Alabama. Nevertheless, Gaylord Chemical demonstrates that merely relocating a facility cannot achieve elimination of a union.

Conflicts Between Alabama Law and OSHA Drug Testing Rules

July 11, 2016Robert C. Lockwood

Drug Test

Potentially, there is a conflict between Alabama’s Drug Free Workplace Act and new OSHA regulations on reporting workplace injuries.

Alabama’s Drug Free Workplace Act gives employers reductions in their workers’ compensation insurance premiums if they adopt a drug free workplace policy, which includes post-accident drug testing. Here’s a link to the Act. Drug Free Workplace Act

On August 10, 2016, the Occupational Health and Safety Administration will implement changes to its regulations that could conflict with the Alabama Drug Free Workplace Act. Under those new regulations an employer must have a “reasonable procedure” that allows employees to report on-the-job injuries. But, policies “that deter or discourage a reasonable employee from accurately reporting a workplace injury or illness” are not reasonable. OSHA has taken the position that policies requiring “blanket post-injury drug testing policies deter proper reporting,” and are unreasonable. Thus, post-accident drug testing could subject employers to OSHA citations.

So, the Alabama Drug Free Workplace Act provides incentives for post-accident drug testing. But, the new OSHA regulations could result in citations for post-accident drug testing. Attorney Tommy Eden in Opelika, Alabama has conducted an excellent analysis of this conflict and risk reduction strategies. His discussion can be found here: Post Accident Drug Testing

OSHA Inspections:Employers Can Be Cited for Violations Beyond Those In A Complaint

July 6, 2016Robert C. Lockwood

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A recent case from the Eleventh Circuit Court of Appeals demonstrates the dangers of giving OSHA inspectors free access to an employer’s facility. See Peacock Timber Co. v. Department of Labor, No. 15-13514, 2016 WL 2848680 (May 16, 2016). In Peacock Timber, an OSHA inspector visited Peacock Timber Company’s workplace to investigate safety complaints by a former employee. The inspector found that those complaints were unfounded, but still cited Peacock Timber for other violations noted during the inspection.

Peacock Timber appealed, but the Eleventh Circuit affirmed the penalties imposed. Peacock argued that the OSHA inspectors violated the Fourth Amendment to the United States Constitution, because inspectors were not authorized to search the facility for violations beyond those in the former employee’s complaint. But, the Eleventh Circuit found company officials consented to the inspections, which negated any Fourth Amendment limitations.

Peacock Timber demonstrates the dangers of providing OSHA inspectors with unfettered access to an employer’s workplace. If you do not already have a procedure in place for responding to OSHA inspection requests, I strongly suggest that you consult with counsel to develop a procedure.

Suing Employees Could Violate OSHA’s Whistleblower Protections

June 30, 2016Robert C. Lockwood

A recent decision from the Eleventh Circuit Court of Appeals discusses retaliation claims under the Occupational Safety and Health Act (“OSHA”). Secretary of Labor v. Lear Corp., No. 15-12060, 2016 WL 2788693 (11th Cir. May 13, 2016). Lear Corporation (“Lear”) sued a former employee in state court for defamation and intentional interference with business relations. Thereafter, the United States Secretary of Labor sued Lear claiming that Lear’s state court law suit was merely retaliation for complaints by the employee about health and safety conditions at Lear’s manufacturing plant.

A trial court entered an injunction which prohibited Lear from suing any current or former employees, and Lear appealed. The Eleventh Circuit Court of Appeals found that the Secretary of Labor was empowered to file such law suits and the trial court generally possessed the power to enter injunctions. But, the Eleventh Circuit vacated the injunction because the trial court failed to conduct the correct analysis for issuing an injunction.

A federal trial court can only enjoin a state court law suit like Lear’s if it finds: (1) retaliatory motive and a lack of a reasonable basis for filing the law suit; or, (2) preemption of the state court law suit by some federal law. In this case, the trial court failed to make either finding and instead issued an injunction “based on potential for retaliation alone.”

In summary, the Eleventh Circuit recognized that law suits filed by employers in state court could be retaliatory and in violation of OSHA’s whistleblower protections. But, such law suits can only be stopped by a federal court if the court performs the correct analysis.

An Employer’s Demand That More Work Be Performed is Not Discriminatory

June 28, 2016Robert C. Lockwood

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The Eleventh Circuit Court of Appeals recently held that “[a]n employer’s demand that more work be done — even if unjustified — is not discriminatory.” Schrock v. Publix Super Markets, Inc., No. 15-14631, 2016 WL 3425124 at *2 (11th Cir. Jun. 22, 2016). Employers might be tempted to overreact: “Great! I can load up my employees with huge amounts of work and it will never be discriminatory.” Nevertheless, I suggest that employers should proceed cautiously.

Context is everything. The Eleventh Circuit’s issued its holding when discussing a Title VII retaliation claim. To successfully state a claim for retaliation, an employee must be opposing conduct by the employer which violates Title VII. And, the employee must have a good faith, reasonable belief that the employer’s conduct violates Title VII.

In Schrock, the employee complained to her supervisors that she was being required to manage a bakery without sufficient time to do so. When she was later terminated from employment, she claimed that her employer was retaliating for her complaints about being overworked. She apparently never claimed that she was overworked because of her race, gender or other protected characteristic. Therefore, she could not successfully pursue a retaliation claim, because a mere complaint about overwork is not protected by Title VII.

The employee in Schrock might have possessed a better claim if she complained: “You are overworking me because I am African-American.” But, Title VII will not provide an employee with protection for merely saying: “You are working me too much.”

Managerial Employees Can Still Be Entitled to Overtime

June 10, 2016Robert C. Lockwood

Manager

Frequently, my clients think that every managerial employee is exempt from overtime. That assumption is dangerous and can lead to liability for overtime — particularly under the new overtime rule which will go into effect on December 1, 2016.

In determining eligibility for overtime, the first hurdle is not the duties performed by the employee. Instead, look at their salary first. Under the current regulations, almost every employee who earns a salary less than $23,660 is entitled to overtime — regardless of whether their duties might make them executive, administrative or professional employees under the Fair Labor Standards Act. On December 1, 2016, that salary threshold will increase to $47,476. Here’s a link to a previous post about the new rule: Breaking News: Final Overtime Rule Released

So, if you have a manager making a salary less than $47,476, you will probably be required to pay them overtime starting December 1, 2016. I strongly encourage you to conduct an audit/review of all of your employees to determine if they will be entitled to payment of overtime under the new rule.

Would Alabama Courts Review Termination of LGBT Ministers?

May 27, 2016Robert C. Lockwood

Church

Recently, the United Methodist Church conducted its General Conference during which the issue of LGBT clergy was a central theological dispute. That dispute is discussed extensively in this article: The Divided Methodist Church In connection with the conference, 111 pastors, deacons and candidates for ministry came out as lesbian, gay or bisexual. Defying church ban, dozens of Methodist clergy come out as gay and lesbian Those clergy members are “essentially daring their supervisors to discipline them.”

As I understand the procedural nature of potential discipline, each United Methodist Church Conference will be responsible for imposing any possible discipline. Nevertheless, the lawyer in me wondered if Alabama courts would review any decision by a Conference to terminate the employment of an LGBT minister.

Coincidentally, the Alabama Supreme Court recently issued a decision concerning removal of a minister. St. Union Baptist Church, Inc. v. Howard, No. 1141132, 2016 WL 2848391 (May 13, 2016). Importantly, Howard was not a case involving an LGBT minister. Instead, it involved efforts by members of a congregation to terminate a pastor because of issues such as “lack of spiritual and financial leadership.” Justice Lynn Stuart authored an opinion in which the Court found that the dispute was “was a spiritual and ecclesiastical matter in which the court could not interfere without violating both federal and state constitutional provisions.”

The Howard decision closely mirrored the extensive analysis provided by the Supreme Court in Ex parte Bole, 103 So.3d 40 (Ala. 2012). Bole was a case involving a United Methodist minister who sued for defamation and the tort of outrage after he was removed by the North Alabama Conference of the United Methodist Church. The Court refused to review those claims because they were “intertwined with the underlying investigation by the Conference, with the resolution, and with the Conference’s ultimate decision to remove” the pastor from ministry. Bole, 103 So.3d at 72.

Based upon Howard and Bole, I think it is unlikely that an Alabama state court would accept a legal challenge filed by a minister removed from the pulpit because of his or her LGBT status. Howard recognizes a slim possibility that a claim for purely contractual disputes might be justiciable. But, where the dispute centers on spiritual or ecclesiastical matters, such as the theological propriety of LGBT ministers, I think the odds are unlikely that the courts will interfere with church decisions.

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