Alabama Employment Law Archives - Page 4 of 16

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.

Does the First Amendment Protect Employees Who “Take a Knee”?

November 14, 2017November 14, 2017Robert C. Lockwood

First Amendment Alabama Employment Law constitution — Does the First Amendment Provide Protection to Employees in the Private Sector?

I was just driving back to work from lunch and listening to a popular sports talk radio program. The host of that show was addressing the recent issues that have arisen when professional athletes have protested during the national anthem. As part of the discussion, the host quoted extensively from a recent opinion piece by Stan Van Gundy, the coach of the NBA’s Detroit Pistons: “Athletes Who Protest Are Patriots” In particular, part of Mr. Van Gundy’s argument relies upon the First Amendment to the United States Constitution:

Honoring America has to mean much, much more than standing at attention for a song (one which, by the way, contains racist language in later verses). One of the most important freedoms that our military has fought for over two-plus centuries is the freedom of speech. When these professional athletes protest during the anthem, they are exercising one of the very freedoms for which our military men and women fought so valiantly, thus honoring our highest values and, in turn, those who have fought for them.

Please read the entire article. Mr. Van Gundy makes substantial arguments regarding the message that these professional athletes are attempting to convey.

I am not taking a favorable or unfavorable position with regard to these protests. Both sides are passionate about their viewpoint, and I appreciate both sides. But, as a lawyer who practices employment law and regularly defends governmental entities accused of violating the constitution, the continued references to “Free Speech” just bother me.

In the vast majority of circumstances, the First Amendment to the United States Constitution does not provide protection to employees in the private sector. The First Amendment provides that “Congress shall make no law … abridging the freedom of speech ….” The key word here is “Congress.” Statutes and case law have extended the term “Congress” to most governmental entities. But, private employers (including the NFL) are not governmental entities and they are not required to comply with the First Amendment. I made this point in my very first blog post, when I noted that you can fire an employee who keeps yelling “Roll Tide” in the office. As a result, employees who protest in a private workplace run the risk of termination or other adverse consequences as a result of their protests.

I haven’t reviewed the collective bargaining agreement between the NFL Players Association and the NFL. Similarly, I don’t have access to any NFL player’s employment contract. It’s possible that those documents, or some other source of legal rights, protects these players’ ability to protest. But, the First Amendment’s right to Free Speech does not provide them with legal support.

Taxpayer Can Sue to Void “Illegal” Government Employment Contract

November 13, 2017Robert C. Lockwood

Government taxpayer employment contract Alabama Employment Law — 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.

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.”

Boom & Bust: OSHA Requires Workers in an Aerial Lift to Tie-Off

October 23, 2017Robert C. Lockwood

OSHA aerial lift tie off Alabama Employment Law — Employees who merely ride in an aerial lift are still required to tie-off.

Despite a creative argument from an employer, the Eleventh Circuit has found that employees are required to tie-off for fall protection when they are in an aerial lift. Empire Roofing Co. v. Occupational Safety and Health Review Comm., No. 16-17309, 2017 WL 4708162 (11th Cir. Oct. 19, 2017). In April 2013, an OSHA compliance officer inspected a work site where Empire Roofing was installing metal sheeting on the roof. The officer saw Empire’s foreman standing in the basket of an aerial lift without being tied off to the boom or basket. The foreman later admitted that he previously used the aerial lift to transport two employees to the roof. OSHA fined Empire Roofing for a violation of the OSHA act, and Empire Roofing challenged that fine.

An OSHA regulation required that “[a] body belt shall be worn and a lanyard attached to the boom or basket when working from an aerial lift.” 29 C.F.R. § 1926.453(b)(2)(v). Despite the fairly clear language of that regulation, Empire Roofing argued that its employees were not actually “working” from the lift. Instead, they were merely “riding” in the lift. Nevertheless, OSHA’s established interpretation of the term “working” found “[i]t is well established that employees are considered to be working any time they are performing work or work-related activities. Moving from one work location to another is considered work-related activity.” The Eleventh Circuit found that OSHA’s interpretation of that regulation was reasonable, and therefore deferred to OSHA.

Empire Roofing also tried to claim that it could not be responsible for the foreman’s “rogue conduct” in allowing the employees to ride in the aerial lift without tying off. The Eleventh Circuit found that Empire Roofing would not have been liable if the foreman was the sole person riding in the lift without tying off. But, because Empire Roofing gave the foreman control over other employees, and the foreman exposed those employees to danger, Empire Roofing was liable for transporting those employees in violation of the regulation.

11th Circuit Rejects “Target of Opportunity” Argument

October 20, 2017Robert C. Lockwood

target of opportunity retaliation Alabama Employment Law — A “target of opportunity” might work for a B-52 bomber, but it won’t fly in a retaliation case.

Over 20 years ago, a lawyer in a case that I was working on made a “target of opportunity” argument in a retaliation case. He claimed that his client engaged in protected activity more than a year before she was terminated, but that her employer used a later, relatively small instance of misconduct as a “target of opportunity” to get rid of her. According to him, the small instance of misconduct was the first opportunity that the employer was given to retaliate against his client after her protected conduct. In the course of that argument, the attorney eloquently made reference to the movie “Dr. Strangelove,” and it has always been a case that I remembered.

On October 10, 2017, the Eleventh Circuit Court of Appeals issued an opinion that shoots his “target of opportunity” argument out of the sky. See Cooler v. Layne Christensen Co., No. 16-17773, 2017 WL 4512159 (11th Cir. Oct. 10, 2017). Joseph Cooler was an African-American who was subjected to a difficult work environment in which white co-workers would use the “N Word” and call him “boy.” He began dating a white woman in October 2013, and his co-workers increased their hostile treatment of him. Cooler reported the treatment to a supervisor and reported other conduct in October 2013. The supervisors never investigated or followed-up. On May 1, 2014, Cooler was attending an out-of-town training, but missed between 20 and 40 minutes of that training. When confronted, Cooler denied any responsibility. His employer terminated his employment, allegedly for wasting company time and refusing to accept responsibility.

Cooler sued for retaliation, claiming that he was actually fired for his complaints about racial harassment. In retaliation cases, an employee is required to prove that his protected complaints caused his termination. In most cases, causation is proved by close timing between the complaints and the termination. Generally in the Eleventh Circuit, if a termination occurs more than three months after a complaint, causation will be difficult to prove.

In Cooler’s case, at least six months passed between his complaints and his termination, which the Court found “was not close in time to his protected activity.” Thus, Cooler’s attorney attempted to make the “target of opportunity” argument: “[H]e argues he was fired at Layne’s first opportunity to retaliate against him. Cooler explains that he was not disciplined in any way before the training, so missing part of the training was the first opportunity Layne had any excuse to fire him.” The Eleventh Circuit rejected that argument by essentially finding that the missed training was not the first opportunity for retaliation. Instead, Cooler was continuously employed during the six-month period and his employer had “a continuous opportunity to retaliate against him.” Therefore, the Court found that the six-month period was too long, and Cooler’s claim failed for lack of causation.

One word of caution to employers: The Eleventh Circuit did not completely obliterate the potential for a “target of opportunity” argument in future cases. In a footnote, the Court recognized that the “target of opportunity” argument might be successful in situations “where the retaliator just assumed a position of power over the plaintiff.”

Boss Have It Out For You? Too Bad, Says 11th Circuit

October 11, 2017Robert C. Lockwood

Boss Eleventh Circuit Alabama Employment Law Title VII discrimination — Even if the boss has it out for you, it is very difficult to win a gender discrimination law suit.

Does your boss have it out for you? The opening sentences of a recent Eleventh Circuit opinion summarize a dilemma confronting many employers:

George Dagnesses believed his boss had it out for him. She belittled him and accosted him, and regularly made negative remarks about men. When his boss eventually fired him, Dagnesses sued his former employer … for sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964 ….

Dagnesses v. Target Media Partners, No. 16-17802, 2017 WL 4329719 (11th Cir. Sep. 29, 2017).

Mr. Dagnesses lost his law suit, even though he produced substantial evidence that his supervisor, Linda Coffman, was hostile towards him. She repeatedly belittled and second-guessed him, and on one occasion poked him the chest. Another female supervisor testified that Coffman’s treatment of Dagnesses made her uncomforatable, but did not believe Coffman disliked Dagnesses because he was a man.

Coffman terminated Dagnesses employment and provided evidence that her decision was based upon insubordination, inappropriate communication, failure to follow instructions and poor attitude. Dagnesses’ discrimination claim failed because he could not identify any similarly situated female employees, who engaged in similar misconduct, and were treated better than him.

The Eleventh Circuit’s analysis included one interesting bit of dicta that employees might attempt to use in the future. Dagnesses attempted to compare himself to a female employee who was “discharged due to dissatisfaction with the quality of her work.” The Court distinguished that female employee by saying that “quality of work” is a “lesser degree of misconduct” than “insubordination, inappropriate communication, failure to follow instructions and poor attitude.” If a future employer fires an employee for “quality of work,” but retains employees with “bad attitudes,” I would expect the employee to argue that they were terminated even though they engaged in a “lesser degree of misconduct” than employees who were retained.

George Dagnesses’ boss may have had it out for him. But, Dagnesses failed to prove that the reason she had it out for him was his gender. In short, a boss can treat employees poorly, but won’t violate Title VII unless the reason for his/her treatment is a bias against race, gender or another protected class.

Age Discrimination: “Fire All the Old People”…”Just Kidding.”

October 9, 2017Robert C. Lockwood

ADEA Age Discrimination Alabama Employment Law Just Kidding — There is no “just kidding” defense in age discrimination law suits.

If one of your executives writes “Fire All the Old People,” you can expect difficulty in defending a claim under the Age Discrimination in Employment Act. (“ADEA”) Moreover, the odds are very slim that you can win your law suit by claiming that your executive was “just kidding.” Those are the hard lessons that an Alabama employer learned in Wheat v. Rogers & Willard, Inc., No. 16-0282-WS-B, 2017 WL 4278347 (S.D. Ala. Sep. 26, 2017).

Ralph Wheat was a 77-year-old project manager/estimator when he was fired on May 2, 2014. The termination decision was made by the majority owners of his company, Mike Rogers and Steve Willard. One year prior, May 2013, Rogers attended a conference and made notes. Under a heading titled “Attracting and Retaining employees,” Rogers wrote “‘Fire all the old people.’ Fiat President.” Next to that statement he wrote: “many large companies bringing in new bloo[d].” Rogers also wrote: “Older guys — Ralph & Jerry — Mentor to their replacements — same with Diane.” Finally, Rogers wrote: “‘Paint’ a vision of what company will look like in three years, i.e., new, younger employees ….”

United States District Court Judge William Steele found that those notes were direct evidence of Mr. Rogers’ discriminatory intent under the ADEA. In attempting to defend the case, Rogers & Willard offered an affidavit from Rogers for the proposition that he did not really mean what his notes said. Based upon that assertion of Rogers alleged true intent, Rogers & Willard asked to have the case dismissed at the summary judgment stage. Judge Steele soundly rejected that argument: “The defendant offers no legal authority for its position that it can obtain summary judgment simply by its decisionmaker’s assertion that he did not mean what he wrote — a position which, if accepted, would amount to an automatically successful ‘just kidding’ defense. …[T]he Court rejects the defendant’s unsupported argument.”

Judge Steele’s ruling means that a jury will decide whether Mike Rogers was biased against older people, and whether Ralph Wheat’s termination violated the ADEA. The Wheat case simply reinforces an important point that I’ve written about before: Anything you say can and will be used against you. The Wheat case might have turned out differently if Mr. Scott never made those notes. But, once he put his thoughts on paper, he provided the terminated employee with enough ammunition to send the case to trial.

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