Alabama Employment Law

The Three Most Important Things to Know About Employees on Jury Duty

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail

Most people think jury duty is a pain in the rear.  I’ve seen and heard of some creative excuses to get out of jury duty.  There’s even a report that “Jesus Christ” was struck from jury service in Birmingham:  Jesus On Jury Duty

Jury duty can also create hardships for employers.  Nevertheless, Alabama has recognized the importance of jury duty by statutorily creating protections for employees who are called for jury service.  This is significant, because the general rule in Alabama is “employment-at-will”: an employee without an employment contract can be terminated for a good reason, a bad reason, or no reason at all.

Protection of employees serving on juries is one of the few exceptions to employment-at-will in Alabama.  Here are the three most important things to know if one of your employees is called for jury service.

 1.  You cannot terminate an employee who misses time from work for jury service.

Alabama Code Section 12-16-8.1 prohibits termination or any “adverse employment action” because an employee was called for jury service.  Notably, Section 12-16-8.1 prohibits adverse employment actions because an employee “serves” on a jury.  But, the Alabama Supreme Court has interpreted the statute to protect employees from serving in any part of the jury process — including simply being called for jury duty.

2.  You must pay an employee their regular wage for time spent in jury service.

Alabama Code Section 12-16-8(c) requires that full-time employees receive their “usual compensation” for the time they spend in jury service.  As a result, you must pay an employee if they are absent for jury service.

3.  You cannot require the employee to use leave time for jury service.

Your company may provide annual, vacation or sick leave time as a benefit to employees.  If they miss time for jury duty, you cannot require, or even request, that they use paid or unpaid leave when they are called for jury duty.  Ala. Code § 12-16-8(b).

 

Alabama Football Players:  Arguably Professionals, But Not Employees

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail

Auburn fans love to claim that the University of Alabama has the best “professional” team in college football.  Rumors of free cars and under-the-table cash payments only fuel this speculation.  Recently, some college athletes have attempted to transform such rumors into reality by arguing that they are “employees” of their schools.  Notably, none of these athletes play for SEC football programs.  So, feel free to draw your own conclusions about the financial benefits of playing football in the South.

In 2014, a Regional Director for the National Labor Relations Board found that football players for Northwestern University were “employees” who were entitled to collective bargaining rights under the National Labor Relations Act.  Northwestern appealed that decision to the National Labor Relations Board.  On appeal, the NLRB punted (pardon the pun).  It declined to exercise jurisdiction over the players’ case, which effectively reversed the Regional Director without actually determining if the players were employees.  In fact, the NLRB explicitly left open the possibility that it might consider the issue in the future.

Members of the track and field team at the University of Pennsylvania attempted a different tactic.  In 2014, they filed a law suit arguing that they were “employees” entitled to minimum wage under the Fair Labor Standards Act.  On February 16, 2016, a federal judge in Indiana dismissed that claim.  Among other things, the judge found “that the existence of thousands of unpaid college athletes on college campuses each year is not a secret, and yet the Department of Labor has not taken any action to apply the FLSA to them.”

In short, Auburn fans can continue to proclaim that Alabama players are professionals.  But, it’s unlikely that a judge will consider them to be University employees any time soon.

“Throwed Rolls” and Attorneys’ Fees:  The High Costs of FLSA Violations

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail

On January 22, 2015, Ramona Brown sued Lambert’s Café, III, Inc. in Foley, Alabama for alleged violations of the Fair Labor Standards Act.  You may know Lambert’s as “the only home of throwed rolls” — where servers actually throw dinner rolls to customers.  Ms. Brown claimed that she and other servers at the restaurant were not properly paid for time they were required to work.  A review of court records indicates that the parties entered into settlement negotiations relatively early in the process.  

On September 24, 2015, the court approved a settlement under which Lambert’s paid $38,000.00, which was split among five employees.  Because those employees were “prevailing parties,” their attorneys were entitled to payment of attorneys’ fees.  But, the parties could not agree on the amount of a “reasonable” fee. 

So, on January 27, 2016, Magistrate Judge William E. Cassady of the United States District Court for the Southern District of Alabama entered an order awarding the employees’ attorneys $41,943.15 in fees and costs.  Notably, the employees’ attorneys submitted hours and billable rates to the Court which could have totaled more than $60,000.00 in fees.  Thus, the Lambert’s case demonstrates that the costs of violating the FLSA can easily skyrocket — not only from damages to employees, but also to pay their attorneys.

 

Government Contractors Need to Get Ready for New FAR Confidentiality Rules

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail

The Federal Acquisition Regulatory Council (“FAR”) has issued a proposed rule which prohibits government contractors from using confidentiality agreements to restrict employees or subcontractors from reporting fraud, waste or abuse to government officials.  That rule can be found here:  FAR Confidentiality Rule.  The Proposed Rule will apply to contracts, including existing contracts, funded by appropriations for Fiscal Year 2015 or subsequent fiscal years.

The proposed rule imposes four obligations on government contractors.

 1. Prospective contractors must include the following affirmative representation of compliance with the rule when the contractor responds to an agency request for bids:

By submission of its offer, the Offeror represents that it does not require employees or subcontractors of such entity seeking to report waste, fraud, or abuse to sign or comply with internal confidentiality agreements or statements prohibiting or otherwise restricting such employees or subcontractors from lawfully reporting such waste, fraud, or abuse to a designated investigative or law enforcement representative of a Federal department or agency authorized to receive such information.

2.  Any contract covered by the Proposed Rule must contain the following clause:

The Contractor shall not require employees or subcontractors of such entity seeking to report waste, fraud, or abuse to sign or comply with internal confidentiality agreements or statements prohibiting or otherwise restricting such employees or subcontractors from lawfully reporting such waste, fraud, or abuse to a designated investigative or law enforcement representative of a Federal department or agency authorized to receive such information.

3. Contractors must notify employees that internal confidentiality agreements covered by the Proposed Rule are no longer effective.

4. Contractors must flow-down the requirements of the proposed rule to subcontractors.

            Interested parties have until March 22, 2016 to submit comments on the proposed rule.  If you are interested, here’s a link with directions on the procedure for comments: Comments

President Obama’s Executive Order on Pay Transparency Became Effective January 11, 2016

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail

 An Executive Order prohibiting federal contractors from engaging in retaliation became effective January 11, 2016.  That order provides that federal contractors and subcontractors cannot discharge or otherwise discriminate against employees and job applicants for discussing, disclosing or inquiring about compensation.  In short, covered employers cannot tell employees or applicants:  “Don’t talk to each other about how much you are paid.”

Among other things, the order requires that covered employers adopt a pay transparency policy statement.  The Department of Labor has provided a model statement, which  can be found here:  Pay Transparency.  Contractors must modify their policy manuals, provide employees with an electronic or physical posting of the requirements of the rule, and implement the new “EEO Is the Law” poster, which can be found here:  Poster

The order has many requirements and you should consult with counsel to ensure you are in proper compliance.

Could A Non-Competition Agreement Prevent Will Muschamp from Coaching at South Carolina?

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail

On National Signing Day, an interesting thought occurred to me:  Could a non-competition agreement prevent Will Muschamp from coaching at South Carolina?  Now, the truly-faithful Auburn fans might argue that South Carolina really doesn’t amount to competition on the football field, anyway.  But, for purposes of this hypothetical, let’s assume that Auburn wanted to prevent Will Muschamp from coaching at another SEC school.  Would Alabama law enforce a non-competition agreement in his employment contract?

Non-competition agreements in Alabama are governed by Alabama Code Section 8-1-1.  Here is a link to the November, 2015 edition of The Alabama Lawyer:  Alabama Lawyer. My law partner, Rich Raleigh (on Twitter @RichRaleigh), helped to author a great article in that magazine discussing recent revisions to Section 8-1-1.

I think it would be difficult to enforce a non-compete against a major college football coach.  First, the non-compete must be designed to preserve a “protectable interest.”  “Confidential information” is protectable, as well as “commercial relationships with specific prospective or existing customers or clients.”  Auburn would undoubtedly try to argue that something about its football program (like Coach Malzahn’s playbook) is confidential.  An innovative lawyer might also argue that Auburn’s recruits are “prospective or existing customers or clients.”

More importantly, Auburn would have to show that Muschamp “holds a position uniquely essential to the management, organization or service of the business.”  Many Auburn fans would say that Will Muschamp provided nothing uniquely essential in his management of the defense last year.  Less subjectively, given the high rate of turnover in college football coaches, an argument could be made that there is nothing uniquely essential about a defensive coordinator.

Auburn might also try to argue that it is trying to keep Muschamp from “engaging in a similar business within a specified geographic area.”  But, such restrictions can only be enforced by “commercial entities.”  The new revisions to Section 8-1-1 do not define “commercial entity.”  Therefore, there is a chance that a public university like Auburn might not be a “commercial entity.”

If you are interested, Will Muschamp’s contract does not contain a non-competition agreement.  In fact, it expressly contemplated that Muschamp might leave and required a buy-out.  Here is a link to an AL.com article, which includes a copy of the contract at the end:  Muschamp Contract.

EEOC Releases Guidance Expanding Scope of Retaliation.

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail

 

On January 21, 2016, the EEOC issued a draft guidance expanding its interpretation of the law regarding retaliation claims.  The EEOC claims that it needs to revise its guidance because of several Supreme Court decisions which were released after publication of its last retaliation guidance in 1998.  While the EEOC’s enforcement guidance is supposed to be used only by EEOC investigative staff, courts and attorneys frequently cite the guidance as a source of authority.  Unsurprisingly, the EEOC’s interpretation of the law is fairly liberal and employee-friendly.  The EEOC’s draft guidance can be found here:  EEOC Retaliation Guidance

One key example of the EEOC’s expansive interpretation is the burden placed on an employee to demonstrate that an employer’s stated reason for termination is pretextual — or unworthy of belief.  Traditionally, the Eleventh Circuit (which reviews most retaliation claims originating in Alabama) requires an employee to address the employer’s reason for termination “head on.”  If any employer says it terminated an employee for tardiness, the employee needs to show that he wasn’t tardy or that other employees were tardy and not fired.  In contrast, the EEOC’s guidance indicates that it won’t require a “head on” analysis.  Instead, the EEOC will allow an employee to demonstrate a “convincing mosaic” of other evidence to allow an “inference” of discriminatory intent.

The EEOC will accept public comments on its draft guidance until February 24, 2016.  Comments can be made at www.regulations.gov in letter, email, or memoranda format. Alternatively, hard copies may be mailed to Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507.

JUDGE ACKER PROVIDES EMPLOYERS WITH A WEAPON AGAINST DISCRIMINATION CLAIMS

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail

Senior United States District Court Judge William Acker is providing Alabama employers with a highly-effective weapon against employment discrimination complaints.  In many cases, a terminated employee will be a member of multiple protected classes, for example race, age and disability.  When they are terminated from employment, those employees may suspect that one or more of their protected traits were the reason for termination.  As a result of that uncertainty, employers are often sued under multiple federal statutes:  Title VII of the Civil Rights Act of 1964; the Age Discrimination in Employment Act; and, the Americans with Disabilities Act.

Judge Acker is putting an end to that practice.  In a string of cases starting with Savage v. Secure First Credit Union, No. 2:14–cv–2468–WMA, –––F.Supp.3d ––––, 2015 WL 2169135 (N.D. Ala. May 8, 2015), Judge Acker is making employees choose exactly which employment law they are claiming has been violated.  Judge Acker’s reasoning is based upon the fact that an employee in ADA, ADEA, and Title VII retaliation cases must prove that the protected characteristic was the “but for” cause of termination.  In other words, the employee must prove that the characteristic was the only reason for termination.

As a result, Judge Acker finds that it is impossible for an employee to file a complaint claiming that he was fired in violation of the ADA or the ADEA or Title VII retaliation.  Instead, he is making employees commit to one discrimination claim.  If they refuse, he is dismissing their case in its entirety.

Notably, a Title VII claim for race, gender or religious discrimination does not require a “but for” causation analysis.  Under Title VII, an employee can recover if his employer had “mixed motives” for termination.  As a result, if race, gender or religion was merely part of the reason for termination, it is possible for an employee to win.  I discussed this possibility in reviewing the case of a transgender auto mechanic who was terminated after sleeping in a customer’s car:  LGBT Issues In the Workplace

Judge Acker’s decision in the Savage case is currently on appeal before the Eleventh Circuit Court of Appeals.  Thus, it is possible that the Eleventh Circuit could find that he is wrong, and employees can be permitted to assert multiple claims, even under “but for” statutes.

HAVE YOU REVIEWED YOUR EMPLOYMENT APPLICATIONS FOR ADA COMPLIANCE?

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail

Many employers either forget or are unaware that the Americans with Disabilities Act restricts disability-related questions on employment applications.  In particular, the ADA prohibits discrimination “in regard to job application procedures.”  As a result, employers cannot ask disability-related questions or require medical examinations until after an applicant has been given a conditional job offer.

The EEOC has provided enforcement guidance on this issue:

At the pre-offer stage, an employer cannot ask questions that are likely to elicit information about a disability. Of course, this includes directly asking whether an applicant has a particular disability. It also means that an employer cannot ask questions that are closely related to disability.

Certainly, an employer may not ask a broad question about impairments that is likely to elicit information about disability, such as, “What impairments do you have?”

Many employers also want to know about an employee’s history of drug use.  This can be a thorny issue because the ADA provides protection for past drug addiction.  Current use and addiction are not protected, but past addiction is.  The EEOC makes this issue clear as mud with its guidance:

May an employer ask applicants about their prior illegal drug use?

That depends on whether the particular question is likely to elicit information about a disability. It is important to remember that past illegal drug addiction is a covered disability under the ADA (as long as the person is not a current illegal drug user), but past casual use is not a covered disability. Therefore, whether the question is likely to elicit information about a disability depends on whether it goes to past drug addiction.

It is safe to say that you can ask an applicant if they are currently using any illegal drugs.  You can also ask the general question of whether they have ever used illegal drugs.  But, if you ask for more detail beyond those general questions (like “Tell us the extent of your past drug use and whether you received treatment”) you may be close to violating the ADA.

It may be worthwhile to take a few minutes to see if your employment application asks questions that are in compliance with the ADA.

Birmingham Bans Inquiries on Criminal Convictions

Robert C. Lockwood
Facebooktwittergoogle_plusredditpinterestlinkedinmail

 

It appears that job applications to work for the City of Birmingham will no longer require applicants to disclose criminal convictions.  Yesterday, Birmingham Mayor William Bell issued an executive order which modified the City’s hiring practices and adopted the “Ban the Box” movement.  Here’s a link to the Al.com article. Article

Most employment applications ask if the applicant has been convicted of a crime, and contain a “box” to check “yes” or “no.”  The “Ban the Box” movement seeks to remove that “box,” and other conviction inquiries, from job applications.  In concept, the “Ban the Box” requirement prevents employers from automatically weeding-out employees with a criminal history, which gives applicants a better chance at a job, and decreases the chances that they will commit another crime.

Mayor Bell’s executive order follows an executive order issued by President Obama on November 2, 2015.  In that order, President Obama directed that the “box” should be removed from applications for federal employment.  Here’s a link discussing that action and providing more information on the “Ban the Box” movement.  Obama Article

One of the central tenets of “Ban the Box” is that inquiries about criminal convictions should occur “later” in the hiring process.  Unfortunately, there is not a lot of clarity on when such inquiries should be permitted.  Can they be made before a job offer?  Or after?

Mayor Bell’s order does not provide much insight.  In fact, it adopts a broad policy to “implement hiring policies and procedures intended to encourage the full participation of motivated and qualified persons with criminal histories in the workforce, reduce recidivism and ensure public safety.”  It also “prohibit[s] the use of a criminal record as an automatic bar to employment” and requires that applicants receive an opportunity to “contest the content and relevance of a criminal conviction”.

Importantly, the executive orders from Mayor Bell and President Obama apply only to applications to work for the City of Birmingham or the federal government.  Private employers can still use job applications that ask about criminal convictions.

Nevertheless, there is a growing movement for Congress to pass “Ban the Box” legislation which would, at a minimum, apply to federal contractors.  Similarly, the City of New York has already imposed such legislation on private employers.

The devil is in the details with such legislation.  If Birmingham’s executive order was used as a starting point for legislation, the burdens on employers could be onerous.  What happens if an employer uses a criminal record as an “automatic bar to employment,” even in the post-offer stage?  How extensive must the opportunity be to allow applicants to “contest the content and relevance of a criminal conviction”?   What is the penalty for violations?

Employers should keep an eye on the “Ban the Box” movement and work to ensure that any new regulations do not impose requirements that are unworkable in the private sector.