Many employees like to complain about their work environment. In large part, Alabama law provides no protections to employees who complain about work conditions, because Alabama is an employment-at-will state. This means that, in the absence of an employment contract, employees can generally be fired for a good reason, a bad reason or no reason at all.
Nevertheless, Alabama provides at least three statutes which limit the ability of employers to terminate employees who make reports about work conditions:
Alabama Code Section 25-5-11.1 prevents employers from terminating employees who file written notices of safety violations.
Alabama Code Section 25-8-57 protects employees who oppose or report violations of Alabama’s Child Labor Laws.
Alabama Code Section 36-26A-3 prohibits adverse actions against a limited set of governmental employees who report wrongdoing by their supervisors.
While Alabama law provides very little protection for employees, there are numerous federal laws that do protect employees. Therefore, you should consult your attorney before disciplining an employee who complains about their work environment.
Clock and mobile phone on a wooden table. Old wood texture. Deadline or time concept with technology. Close up with copy space. There is also a green plant on the table.
Some employers issue smartphones to their employees for use on the job. There are at least two reasons that employers should proceed cautiously before giving employees a smartphone.
First, a smartphone increases the risks of accidents of all kinds. Employees can trip and fall while checking e-mail. Or worse, they can have a car accident while texting and driving. Employers issuing smartphones should develop policies strictly limiting the use of those devices. More importantly, employers must follow those policies and discipline employees who fail to follow them.
Second, a recent decision from Chicago indicates that employees may be entitled to overtime for off-duty time spent working on a smartphone. Allen v. City of Chicago, 2015 WL 84939966 (N.D. Ill. Dec. 10, 2015). In Allen, the judge found that the employer was not required to pay overtime; but the judge also set up a framework under which smartphone use could be compensable. If off-duty e-mail is necessarily and primarily a part of the job and if the employer knows, or has reason to know, about the smartphone use, the employee may be entitled to overtime.
Once again, the lesson of Allen is that employers should have strict policies on smartphone use and enforce those policies.
Yellow sticky note on a laptop keyboard with ‘Gone for Lunch’ on it.
Occasionally, a client will ask if they are required to pay employees for lunch breaks. The answer is: “It depends.” Employers are not required to provide employees with any kind of breaks, including “lunch breaks,” “rest breaks” or “smoke breaks.” Nevertheless, if an employer provides breaks, the Fair Labor Standards Act generally requires that employees receive pay for “short breaks” of 20 minutes or less. The FLSA does not require pay for “bona fide lunch breaks.”
So, what is a “bona fide lunch break”? In the Eleventh Circuit (which reviews cases from Alabama), a bona fide lunch break is one where employees are completely relieved from work for the purpose of eating a regularly scheduled meal. For some employers, this can be a difficult standard.
A 2014 case from Judge Sharon Blackburn demonstrates the burdens placed on employers. SeeLedbetter v. Mercedes Benz U.S. International, Inc., No. 7:10-CV-0467-SLB, 2014 WL 1247988 (N.D. Ala. Mar. 24, 2014). In that case, workers at the Mercedes Benz plant were scheduled to have an uninterrupted 45-minute lunch break. Nevertheless, the evidence showed that they were “frequently” recalled during their meal period to perform their customary duties. Judge Blackburn refused to dismiss the case against Mercedes Benz and found that employees “were not completely relieved of their work duties and their meal breaks, even the rare, uninterrupted meal break, are compensable.”
In short, if an employer “frequently” makes an employee work during lunch breaks, then it is possible that the employee is entitled to pay for all lunch breaks — even uninterrupted lunch breaks.
The Alabama Supreme Court recently upheld an award of $600,000 in compensatory damages to an “at will” employee who sued his employer for fraud. SeeFarmers Insurance Exchange v. Morris, No. 1121091, 2016 WL 661671 (Ala. Feb. 12, 2016). In Morris, the employee was working as an independent insurance agent at his father’s insurance agency. He wanted to continue working for his father, but also join Farmers Insurance Company as an agent. He repeatedly asked Farmers representatives if he could work for both his father and Farmers. He was told that such a relationship was permissible. Although there was conflicting evidence, the jury found that the employee was ultimately terminated by Farmers because of a conflict of interest policy which actually prohibited the employee from working for both Farmers and his father.
The employee argued that Farmers fraudulently induced him into giving up business with his father’s agency — business which Farmers retained after termination. A crucial element of fraud is detrimental reliance — the recipient of a promise takes detrimental action in reliance on the promise. In this case, the employee claimed that he detrimentally relied upon Farmers’ promise that there was no conflict of interest.
Farmers argued that the employee was an “at will” employee of Farmers, who could be terminated from employment at any time. As a result, he could not rely upon his belief that he would continue to work at Farmers and receive payment from Farmers in the future. The Alabama Supreme Court rejected that argument: “When an employee leaves one job for another based on a representation by the new employer regarding the new job that is not true at the time it is made, the new employer cannot hide behind the fact that Alabama law enforces or reads into the new employment contract an ‘at will’ clause to avoid the consequences of its fraud.”
The key lesson for employers is to attempt to learn all of the promises made to potential employees in the course of interviews. This can be a difficult task, but the key is documentation. In the course of interviews, executives need to make comprehensive notes of the questions asked by applicants and the answers given by the executive. With that documentation, employers can better defend potential claims for fraud based upon the interview process.
An illustration for a basketball tournament. Vector EPS 10. EPS file contains transparencies and is layered. Type has been converted to outlines.
In Alabama, we love football. Nevertheless, at this time of year, even die hard football fans can appreciate the drama of March Madness – the NCAA Basketball Tournament. To celebrate March Madness, I found four cases where the basketball tournament was raised as an issue in employment law suits. Since three of those four cases came from Illinois, I think it’s safe to conclude that basketball is big in Mid-West.
1. The “Sore Loser” Defense. Ricco v. Southwest Surgery Center, LLC, 73 F.Supp.3d 961 (N.D. Ill.2014).
Ricco involved a claim for tortious interference with business expectancy under Illinois law. The plaintiff was terminated after a co-worker accused her of stealing a coat. She claimed that her co-worker falsely accused her “because he was angry about losing the 2013 March Madness pool and having to pay her….winnings.” The Judge allowed a jury to determine whether the co-worker’s motives were malicious.
2. The “Everybody’s Doing It” Defense. Jones v. Environmental Protection Agency, 524 Fed. Appx 598 (Fed. Cir. 2013).
In Jones, the plaintiff was terminated for engaging in an outside business during work hours and sending inappropriate e-mails. He argued that his termination was improper “because other EPA employees and supervisors misused government time and equipment by participating in an annual NCAA office basketball pool.” The Court of Civil Appeals for the Federal Circuit was not persuaded and affirmed the termination.
3. Winning Trumps Insensitivity. Leonard v. Eastern Ill. Univ, 614 F. Supp. 2d 918 (C.D. Ill. 2009).
In Leonard, the plaintiff was a Native American who complained about an interview where two interviewers wore shirts with the image of “Chief Illiniwek,” the mascot of the University of Illinois. In the course of finding no retaliation, the Court noted that at the time of the interview “the University of Illinois Fighting Illinois men’s basketball team was playing in the NCAA Tournament Sweet 16… [and] was the best Illinois basketball team since the 1989 Final Four Team.”
4. “The Tournament Made Me Late for Work”. Meinke v. VHS Genesis Labs, Inc., No. 05C 3952, 2006 WL 3409159 (N.D. Ill. Nov. 21, 2006).
In Meinke, the plaintiff was terminated from employment for, among other things, excessive absences. On one occasion when the plaintiff missed work, his supervisor called “his cellular phone on March 18, 2004, at approximately 1:30p.m., and told plaintiff to turn off the NCAA basketball tournament.” The plaintiff denied watching the NCAA tournament at that time.
About a month ago, I discussed a string of decisions issued by Senior United States District Court Judge William Acker. Judge Acker has taken the position that “but for” causation prohibits an employee from making alternative claims of retaliation under Title VII, or the ADA or the ADEA. In short, Judge Acker is making employees limit their retaliation claims to only one statute. Here is a link to my previous comment:Judge Acker Comment.
In a recent decision, Judge Acker slightly softened his stance on “but for” causation. SeeKirkland v. Southern Company Svcs, No. 2:15-cv-1500-WMA (N.D. Ala. March 8, 2016). In Kirkland, Judge Acker dismissed an ADA retaliation claim based upon “but for” causation. Nevertheless, Judge Acker declined to dismiss an FMLA retaliation claim. Rather than issuing a definitive decision, Judge Acker found that the issue of “but for” causation in FMLA retaliation claims “is still a toss-up in the Eleventh Circuit.” Judge Acker made clear that he thinks “but for” causation should apply to FMLA retaliation claims, but he would refrain from dismissing such claims until the issue is definitively resolved by the Eleventh Circuit.
If an employee files a charge of discrimination with the EEOC, his or her employer will be required to file a response to the allegations of the EEOC charge. I strongly encourage any reader of this blog to obtain legal counsel before responding to an EEOC charge. But, what if you or your lawyer says something false about an employee in your response to the EEOC charge? Could the employee then use that false statement to sue you for defamation?
On January 15, 2016, the Eleventh Circuit Court of Appeals (which reviews decisions from Alabama) issued a decision indicating that it would be very difficult for such a defamation claim to succeed. In Mack v. Delta Air Lines, Inc., No. 15-11945, 2016 WL 197162 (11th Cir. Jan 15, 2016), a lawyer submitted a response to the EEOC charge for Delta Air Lines. When the employee sued, she included a state-law claim for libel as part of her complaint, claiming that false statements in Delta’s EEOC response defamed her.
The Eleventh Circuit found that, under Georgia law, all filings in quasi-judicial proceedings are protected by absolute immunity and cannot be libelous. The court further found that the EEOC’s investigative process was a quasi-judicial proceeding. As a result, the court affirmed dismissal of the libel claim.
Obviously, the Mack case applies Georgia law. But, Alabama also grants absolute immunity to statements made in quasi-judicial proceedings. Sullivan v. Smith, 925 So.2d 972 (Ala. Civ. App. 2006). As a result, it would probably be difficult for an employee to succeed on a defamation claim arising from your response to an EEOC charge. In fact, at least one federal court in Alabama reached that conclusion before Mack was issued. SeeHatfield v. Bio-Medical Apps. of Ala., 2012 WL 4478769 (M.D. Ala. Sep. 24, 2012).
I frequently receive telephone calls from clients asking if they are required to create a light duty position for an employee who is injured on the job. The well-reasoned response to that question is: “It depends on your definition of ‘create.'”
While the question seems simple, this is an extremely complex area of the law that involves the intersection of the Alabama Workers’ Compensation Act, the Americans with Disabilities Act and the Family and Medical Leave Act. Alabama law is clear: the Alabama Workers’ Compensation Act does not require an employer to create a light-duty position for an employee injured on-the-job. Bleier v. Wellington Sears Co., 757 So.2d 1163, 1172 (Ala. 2000).
But, Alabama law is not the final authority for injured employees, because the Americans with Disabilities Act potentially applies. If an employee is a “qualified individual with a disability” (a topic which could occupy several pages of discussion) an employer may be required to supply the employee with a reasonable accommodation. Here’s where the confusion can occur. An employer is not required to create a light duty position. Nevertheless, if a light duty position is available, the employer may be required to transfer the employee to that position as a reasonable accommodation. Moreover, if the employer has previously created positions for injured employees, there may be a requirement to create a position again.
In addition to the ADA, the Family and Medical Leave Act adds to the complexity of this question. While the FMLA does not impose any accommodation requirements on employers, it does provide protection for employees suffering from a “serious health condition.” Employees on FMLA leave are entitled to reinstatement after exhaustion of their leave. The Eleventh Circuit Court of Appeals (which reviews FMLA cases in Alabama) has imposed a heavy burden on employers who fail to return employees to work. Even if you don’t have to create a light duty position for the employee, you may have an obligation to allow the employee to try to return to work, or give them additional time to return.
Every case is different. When making employment decisions about injured employees, talk to your attorney before taking final action.
In Alabama, any party to a conversation can record that conversation without the consent of the other party. In short, if you and I are talking, I can secretly record the conversation without violating any Alabama law.
Many employers try to combat that general rule by implementing “No Recording” policies, which prohibit any type of audio or video recording in the workplace. While secret recording does not violate Alabama law, it could violate a company policy and therefore serve as a ground for termination of employment.
In 2015, the National Labor Relations Board issued a decision finding that such a policy by Whole Foods Market violated the National Labor Relations Act. The NLRB theorized that broad “No Recording” policies would prevent employees from engaging in conduct protected by the Act — such as making images of protected picketing, documenting unsafe work conditions, and making recordings for use in future administrative or judicial actions.
The NLRB’s decision has been appealed to the Second Circuit Court of Appeals. Nevertheless, there are three key lessons that employers can learn:
1. Broad policies that impose a complete ban on any kind of recording in the workplace will be found by the NLRB to violate the National Labor Relations Act.
2. It may be possible craft a narrowly-tailored “No Recording” policy that will satisfy the NLRB. The NLRB left some room in its decision to allow restrictions on recordings. At this point, however, the NLRB has not provided clear guidance on the scope of such restrictions.
3. Before disciplining an employee for recording a workplace conversation, employers should consult with their attorney to ensure they do not accidentally violate the Fair Labor Standards Act.
Frequently, clients will say to me: “If I just call my employees ‘independent contractors,’ I won’t have to (pay benefits, withhold taxes, comply with Obamacare, etc.)” If legal compliance was that easy, I would be out of a job. Judges don’t care what you call the people who work for you. Instead, they will examine the totality of the relationship to determine if an individual is an “employee” or “independent contractor.”
The key issue in this analysis is control. There are many factors that can indicate whether a person is an employee, but the most important factor is control. Recently, the Eleventh Circuit Court of Appeals found that stagehands (for concerts, plays and other entertainment events) were not employees of a referral service. Crew One Productions, Inc. v. National Labor Relations Board, No. 15-10429, 2016 WL 403201 (11th Cir. Feb. 3, 2016). In that case, Crew One referred stagehands to producers of events. Crew One required the stagehands to attend an orientation session and comply with producer policies, and also provided workers’ compensation insurance. The NLRB found that the stagehands were employees of Crew One and entitled to form a union, but the Eleventh Circuit reversed that determination. While the Court reviewed numerous factors, it emphasized Crew One’s lack of control over the means by which stagehands performed their work. That control was exercised by the producers, not Crew One. As a result, the Court found that the stagehands were independent contractors who were not entitled to form a union.
In contrast, the Alabama Court of Civil Appeals found evidence that a truck driver was an employee for purposes of the Alabama Workers’ Compensation Act in Jenkins v. American Transport, Inc., No. 2140153, 2015 WL 6111 840 (Ala. Civ. App. Oct. 16, 2015). In that case, the truck driver signed an agreement expressly declaring that he was an independent contractor. But, the Court looked beyond that agreement and found that American Transport controlled the manner in which the truck driver performed his job. Among other things, the Court found that American Transport prohibited truck drivers from loading and unloading cargo, or allowing anyone to touch cargo on their trucks. The Court also found that American Transport provided license plates and trailers to the drivers. Thus, the Court found sufficient evidence of control to require a trial on whether the truck driver was an employee.
The Jenkins and Crew One cases demonstrate that your independent contractors must be truly “independent.” Even if you and your worker sign an agreement calling them an “independent contractor,” a court can look beyond that agreement, and particularly examine control, to determine if they are an employee.
