Alabama Employment Law Archives - Page 5 of 16

“I Don’t Hire Overweight People”: Obesity and the ADA

September 29, 2017Robert C. Lockwood

Obesity ADA ADAAA Alabama Employment law disability — Courts are divided on whether obesity is a disability under the ADA.

Last week, an article on AL.com caught my attention. A Vestavia Hills chiropractor admitted that he terminated a receptionist/chiropractic assistant because of her weight. Here’s a link to the article: “I Don’t Hire Overweight People.” I’ve never had a client admit that they terminated an employee based upon their weight and/or obesity. So, my first question was whether the chiropractor might be liable under the Americans with Disabilities Act (“ADA”). Is obesity a “disability” under the ADA?

After a little research, I determined that there is no clear answer. Prior to the ADA Amendments Act in 2008, the EEOC’s interpretive guidance expressly held that obesity would only be considered a disability in “rare circumstances.” But, that guidance was deleted after the ADA amendments. Courts are divided on the issue after the ADA amendments. See McCollum v. Livingston, 4:14–CV–3253, 2017 WL 608665 (S.D. Tx. Feb. 3, 2017)(“Courts are split as to whether obesity, on its own, can qualify as a disability under the ADA”). The highest court to consider the issue lately is the Eighth Circuit Court of Appeals in Morriss v. BNSF Ry. Co, 817 F.3d 1104 (8th Cir. 2016). The Morriss court held that obesity is not a disability unless the obesity is the result of a “physiological disorder.”

In Alabama, Judge Abdul Kallon in the Northern District of Alabama assumed that obesity could be a disability for purposes of his analysis in White v. Beaulieu Group, No. 5:15-cv-02141-AKK, 2017 WL 2243024 (May 23, 2017). But, even with that assumption, Judge Kallon found that the employee failed to prove that he suffered discrimination.

The ADA Amendments Act liberalized the ADA’s requirements and made it much easier for employees to sue. So, as a practical matter, I strongly suggest that all employers refrain from relying upon physical characteristics as a reason for taking an employment action. In my opinion, it’s simply not worth the risk of a law suit.

On final note. In this case, the chiropractor could probably not be liable under the ADA, because the receptionist/chiropractic assistant was his only employee — and an employer must have 15 employees to be subject to the ADA.

Employee Can’t Sue for Getting the “Silent Treatment”

September 13, 2017Robert C. Lockwood

silent treatment discrimination Alabama Employment Law employee — An employee receiving the “silent treatment” is not subjected to actionable discrimination

Your Mom probably told you: “If you can’t say something nice, say nothing at all.” In the workplace, this is sometimes great advice. Rather than unleashing your true feelings on a co-worker, you can elect to ignore him. Nevertheless, you can’t make everybody happy. So, one employee who received the “silent treatment” from co-workers attempted to claim that she was being discriminated against. The Eleventh Circuit Court of Appeals recently rejected that claim in Jones v. Allstate Ins. Co., No. 16-15628, 2017 WL 3887790 (11th Cir. Sep. 6, 2017).

Jamilia Jones’s employment with Allstate Insurance Company was complicated. She complained that she was sexually harassed by her supervisor, and, after an investigation, Allstate fired that supervisor on May 8, 2012. She then took disability leave in June and July 2012. Ms. Jones testified that, upon her return to work, co-workers would not talk to her for fear of losing their jobs. Those who would talk with her would only do so with a witness present. She resigned her employment on September 10, 2012, and later claimed that she was forced to resign because she was treated so poorly at work. In other words, she claimed that she was “constructively discharged.”

To succeed on a claim of constructive discharge, an employee must show that her working conditions were so intolerable that a reasonable person in her position would be compelled to resign. But, the Eleventh Circuit found that the “silent treatment” simply did not amount to intolerable working conditions. As a result, the Court affirmed dismissal of Ms. Jones’s claim for constructive discharge — once again proving that Mom is always right.

Workers’ Comp: A Replacement Machine Is Not a “Safety Device”

September 5, 2017September 5, 2017Robert C. Lockwood

Alabama Supreme Court Workers' Compensation safety device Alabama Employment Law — The Alabama Supreme Court held that failure to install a replacement machine is not equivalent to removal of a “safety device.”

Alabama’s Workers’ Compensation Act provides employers with an interesting trade-off. Employees who are injured on the job are entitled to have their medical bills paid by the employer and receive compensation for any resulting disability. But, the amount of disability benefits are specifically set-out and limited by the Act. Workers’ Compensation is a no-fault system. If an employee is injured, he or she is entitled to benefits. Here’s the trade-0ff. In the vast majority of cases, the Workers’ Compensation Act prohibits employees from suing their employer for negligence, wantonness or punitive damages. In short, the Workers’ Compensation Act makes it easier for employees to recover for their injuries, but limits the ability of employees to sue their employers and the amount they can recover.

Of course, there are always exceptions to any law. The Workers’ Compensation Act also recognizes a limited set of cases in which the employee can sue his or her co-employees for punitive damages. If a co-employee engages in “willful conduct” that causes injury to another employee, the co-employee can be sued. Generally, the Act recognizes four types of “willful conduct”: (1) acting with a purpose, intent or design to injure another; (2) willful and intentional removal from a machine of a safety guard or safety device provided by the manufacturer of the machine with knowledge that injury or death would likely or probably result from the removal; (3) intoxication that causes injury or death of a co-employee; and, (4) willful and intentional violation of a specific written safety rule of the employer after written notice.

Over the years, employees have attempted to expand the reach of those four examples of “willful conduct.” Last week, the Alabama Supreme Court rejected such an attempt in Saarinen v. Hall, No. 1160066, 2017 WL 3821732 (Ala. Sep. 1, 2017). In that case, Louis Hall was injured by a power saw, which was manufactured with a guard that was insufficient to protect Hall. At least a month before he was injured, his employer purchased a replacement saw with a better guard from a different manufacturer. But, the replacement saw was not installed because his employer was too busy to change out the saws.

Hall injured his hand on the saw with the insufficient guard, and then sued his supervisors for “willful conduct.” Hall claimed that their failure to install the new saw was equivalent to the willful and intentional removal of a safety guard. The Alabama Supreme Court rejected that argument: “Under the facts in this case, the failure to install another, presumably safer, saw that was present on the premises but that had not been put into operation and that was manufactured by a different manufacturer than the saw that injured the plaintiff is not the equivalent of the removal of a safety guard so as to constitute willful conduct ….” Saarinen, 2017 WL 3821732 at *3. Interestingly, the Supreme Court expressly refused to decide whether the failure to install a replacement machine manufactured by the same manufacturer might be equivalent to removal of a safety device.

Overtime Regulation Struck Down

September 1, 2017Robert C. Lockwood

Overtime DOL Alabama Employment Law FLSA — The Department of Labor’s Overtime Regulation Was Struck Down By a Federal Judge.

Yesterday, United States District Court Judge Amos Mazzant struck down a Department of Labor overtime regulation which increased the threshold for salary exemption under the Fair Labor Standards Act from $23,000 per year to $47,476 per year. Here’s an article from The Hill discussing Judge Mazzant’s ruling: Texas Judge Strikes Down Obama Overtime Rule

I wrote about the overtime regulation when it was released, here: Overtime Rule Released. After the regulation was released, numerous interested parties filed suit in Judge Mazzant’s court challenging the regulations, and he issued a preliminary injunction, which prevented the regulation from going into effect: Judge Halts Overtime Regulation

The DOL under the Obama administration was not satisfied with Judge Mazzant’s ruling and filed an appeal with the Fifth Circuit Court of Appeals: DOL Appeals Overtime Ruling That appeal remains pending, but many attorneys believe that the DOL under the Trump administration may abandon the appeal. I will keep you updated as the appeal progresses.

Best Lawyers in America – Employment Law – Management

August 31, 2017Robert C. Lockwood

Alabama employment law accolades best lawyers — Best Lawyers recently recognized my work in the area of employment law – management.

I’m proud to announce that I have been recognized by The Best Lawyers in America® for my work in Employment Law – Management. Here’s a link to my law firm’s announcement: Wilmer & Lee Best Lawyers

I am also rated as an AV-Preeminent Attorney™ by Martindale-Hubbell and I have been recognized as a Mid-South Super Lawyer® in the area of employment law.

No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers. Alabama Rules of Professional Conduct Rule 7.2(e).

Recording Conversations: Employment Law and Legal Ethics

August 28, 2017August 28, 2017Robert C. Lockwood

Employee recording conversation terminate termination Alabama employment law — Employees can use various electronic devices to secretly record conversations in the workplace.

I frequently get calls from clients who suspect that their employees are recording conversations in the workplace. Those clients almost always ask whether it is “legal” for employees to secretly record conversations. To that question, I always give the same lawyerly answer: “It depends.”

Generally, it is not a crime in Alabama for a person who is a party to a conversation to secretly record that conversation. It is generally illegal for a non-party to record a conversation. Thus, in general terms, an employee can secretly record any conversation that they take part in. But, the employee cannot “bug” an office and secretly listen to discussions between other people.

The bigger question is: What can be done about employees who are making secret recordings? For the risk-adverse employer, the answer is: very little. An employer might attempt to adopt a “no recording” policy. But, the National Labor Relations Board has found that such policies restrict the ability of employees to engage in protected, concerted activity for formation of unions. Here is a good discussion from the Society for Human Resource Management on the NLRB’s decision: Employers Can’t Prohibit Recording So, if an employer prohibits recordings in the workplace, it risks violating the National Labor Relations Act.

The issue of secret recordings also became an issue in a recent case before United States District Court Judge David Proctor: Smith v. Haynes & Haynes, No. 2;14-cv-01334-RDP, 2017 WL 3613045 (N.D. Ala. Aug. 22, 2017). In that case, the issue did not involve secret recording of employees. Instead, the employee’s lawyer secretly recorded the employer’s lawyer as they discussed the merits of the case. Judge Proctor clearly was not happy: “Surreptitious taping of anyone in a case before the undersigned by an officer of this court is not appropriate. … [T]he court considers it a violation of the ethical duties of counsel admitted to this court.” In short, at least in Judge Proctor’s court, lawyers will be held to a higher standard than employees in the workplace.

Is Working From Home a Reasonable Accommodation?

August 23, 2017Robert C. Lockwood

ADA reasonable accommodation work from home alabama employment law — Sometimes, working from home is not a reasonable accommodation under the ADA.

The Eleventh Circuit Court of Appeals recently found that an employer was not required to allow an employee to work from home as a reasonable accommodation for her pregnancy/disability. Everett v. Grady Memorial Hosp. Corp., No. 16-13495, 2017 WL 3485226 (11th Cir. Aug. 15, 2017).

At the outset, let me stress that the reasonable accommodation analysis under the Americans with Disabilities Act is a case-by-case determination. The Eleventh Circuit’s ruling in Everett depends on the specific facts of that case. In other cases, involving other jobs, work-from-home might be a reasonable accommodation. If one of your employees suffers from an impairment and asks to work from home, proceed very carefully.

In Everett, Ana Everett was employed as the Program Manager for Grady Memorial Hospital’s car seat program. She was diagnosed with a high-risk pregnancy in February 2015 and granted FMLA intermittent leave at that time. On April 28, 2015, Ms. Everett presented a doctor’s note placing her on “light duty.” In May 2015, her doctor diagnosed her with an “incompetent cervix” and said she should work exclusively from home. Grady refused to allow Ms. Everett to work from home. Instead, Grady placed her on unpaid leave until her doctor allowed her to return to work on October 8, 2015.

Ms. Everett asserted several claims against Grady — including a claim for failure to accommodate her pregnancy/disability because she was not allowed to work from home. This is where the fact-intensive nature of the accommodation analysis comes into play. The issue was whether Ms. Everett could perform the essential functions of her job if she worked from home. In short, the Eleventh Circuit reviewed the relevant facts and found that teaching courses, supervising employees and meeting with patients were essential functions of the job. Ms. Everett could not perform those essential functions if she worked from home.

Ms. Everett argued that Grady could assign those job duties to another employee as a reasonable accommodation, but the Eleventh Circuit rejected that argument. “‘[T]he ADA does not require the employee to eliminate an essential function of the plaintiff’s job’ or place it upon someone else.” Everett, 2017 WL 3485226 at *5.

Again, the Eleventh Circuit’s decision in Everett relied upon the fact that Ms. Everett’s presence at the work site was crucial to teach courses, supervise employees and meet with patients. In other cases, particularly in those involving computer-intensive jobs, it might be reasonable to allow an employee with an impairment to work from home.

Employer “Sick and Tired” of EEOC Charges Not Liable for Retaliation

August 21, 2017Robert C. Lockwood

"sick and tired" EEOC retaliation Title VII — Sometimes, an employer “sick and tired” of EEOC complaints can fire an employee without violating Title VII’s anti-retaliation provisions.

The Eleventh Circuit Court of Appeals recently found that an employer who was “sick and tired” of EEOC complaints was not liable for retaliatory discharge of an employee. Matthews v. City of Mobile, No. 16-13155, 2017 WL 3500052 (11th Cir. Aug. 15, 2017). Cassandra Matthews was employed by the City of Mobile, Alabama as a Public Safety Dispatcher II in the Mobile Police Department’s Communications Unit. When the City received 911 calls, Matthews was responsible for identifying emergencies, dispatching law enforcement officers and notifying officers of any updated information provided by callers.

On November 21, 2012, Matthews dispatched police officers to the scene of a fight. Immediately after dispatching officers, she took a personal phone call. A 911 operator attempted to inform Mathews that a weapon was reported at the scene. But, Matthews did not provide that updated information to the dispatched officers.

Thereafter, Matthews met with Mobile’s Chief of Police, Michael Williams. Williams transferred Matthews to a Traffic Unit while the Department conducted an investigation of her failure to update the officers. During the meeting, Williams mentioned EEOC complaints previously filed by Matthews and said that he was “sick and tired” of her EEOC complaints. Matthews testified that Williams had her EEOC complaints on his desk during the meeting. Matthews had filed: (1) an EEOC charge in October 2011; (2) a second EEOC charge in February 2012; (3) a federal discrimination law suit in May 2012; (3) a third EEOC charge in October 2012; and, (4) an internal complaint of harassment and discrimination in November 2012.

On January 24, 2013, Matthews received a hearing before a Trial Board of three members — each appointed by Chief Williams. That Board recommended her termination for neglect of duty.

The Eleventh Circuit found that Matthews’ termination was not retaliation for her EEOC complaints. Instead, the Court found that Matthews failed to demonstrate that the reason for termination (taking a personal call while on an emergency dispatch) was a false reason. The Court further found that Williams'”sick and tired” statements were essentially absolved by the involvement of the Trial Board. Even though Williams appointed the Trial Board, Matthews offered no evidence that the Board knew of her EEOC complaints, and the Court concluded that it would be impermissibly speculative to impute any such knowledge.

Matthews represents the extremely rare case where an employer can make reference to an employee’s EEOC charges during termination, and manage to avoid liability for retaliation. For other employers, my advice is to avoid any reference to past discrimination complaints if an employee engages in misconduct worthy of termination.

Charlottesville: Terminating Neo-Nazi Employees

August 15, 2017Robert C. Lockwood

terminate political views employment-at-will — In most circumstances, it is permissible for an employer to terminate an employee based upon disruptive political views.

John Heyman at Workforce Magazine just wrote a great article on legal issues arising from termination of employees with repugnant political views: When You Discover That You Employ a Nazi In short, Mr. Heyman endorses an employer’s right to terminate employees with Neo-Nazi beliefs.

Mr. Heyman’s analysis applies equally-well in Alabama. As I’ve written on numerous occasions, employees in Alabama possess very few legal rights, because Alabama is an “employment-at-will” state. This means that an employee, who does not possess a written employment contract, can be fired for a good reason, a bad reason, or no reason at all. Of course, federal law can overrule Alabama’s general employment-at-will rule. As a result, employers in Alabama cannot terminate employees who are protected by a federal law. Thus, many forms of discrimination are prohibited in Alabama, because they are barred by federal laws like Title VII of the Civil Rights Act, the Americans with Disabilities Act and the Age Discrimination in Employment Act.

Mr. Heyman’s article notes that employees expressing political views on their own time may receive protection from the National Labor Relations Board. So, there may be some circumstances when employers in Alabama would be ill-advised to terminate employees based upon their political beliefs. Also, governmental-employers face additional obstacles. The First Amendment to the United States Constitution protects freedom of speech. But, the First Amendment only protects citizens from invasion of their rights by government. In most cases, private employers are not required to give employees free speech rights. But, the First Amendment generally prohibits governmental employers for terminating employees based upon their political viewpoints.

EEOC Cannot Revive Claim Barred By Statute of Limitations

August 8, 2017Robert C. Lockwood

EEOC statute of limitations — The EEOC cannot revive a discrimination claim that is barred by the statute of limitations.

The Eleventh Circuit Court of Appeals recently held that the United States Equal Employment Opportunity Commission (“EEOC”) cannot revive a discrimination claim that is barred by the statute of limitations. See Stamper v. Duval County School Bd., No. 15-11788, 2017 WL 3033148 (11th Cir. Jul. 18, 2017).

In 2007, Stamper filed a charge of race and disability discrimination. On February 26, 2009, the EEOC issued a dismissal and notice of rights (also known as a “right to sue letter”) concluding that it could not establish a violation of the statutes. Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act both required Stamper to file a law suit (if any) within 90 days of the right to sue letter. Yet, Stamper did not file suit.

Instead, on July 9, 2011, Stamper filed a request for reconsideration with the EEOC. On December 15, 2011, the agency sent Stamper a “Notice of Revocation,” which attempted to vacate the dismissal of her first charge and revoked the letter terminating processing of that charge. Stamper then filed a second charge of discrimination, and she received a second notice of right to sue on November 5, 2012. Stamper then filed suit within 90 days. A trial court found that her lawsuit was untimely and the Eleventh Circuit affirmed.

The Court relied upon the agency’s own regulations. In particular, 29 C.F.R. § 1601.19(b) allows the EEOC to reconsider a decision to dismiss a charge of discrimination. But, that regulation only affects the 90-day statute of limitations if the EEOC reconsiders within 90 days of its dismissal decision. In short, if the EEOC reconsiders within 90 days, the right to sue is revoked and the statute of limitations is re-set. But, if the EEOC reconsiders after 90 days, the right to sue is not revoked and the statute of limitations is not affected.

In this case, the EEOC reconsidered Stamper’s right to sue more than two years after the fact. As a result, the Eleventh Circuit found that it did not properly revive Stamper’s claims, and affirmed dismissal.

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