Alabama Employment Law Archives - Page 7 of 16

Teenagers: Alabama Law for Hiring Teenagers During the Summer

May 18, 2017May 18, 2017Robert C. Lockwood

teenagers summer child labor laws — Employers need to comply with Child Labor Laws before hiring teenagers for the Summer.

It’s the end of the school year, and many teenagers are looking for summer employment. Employers should make sure that they are in compliance with Alabama’s child labor laws before hiring any teenagers. The Alabama Department of Labor has published a child labor law pamphlet which provides some insight. It can be found here: Child Labor Pamphlet. Among the highlights of Alabama law are the following:

Employers must obtain a Child Labor Certificate from the Department of Labor before employing teenagers.
If an employer hires a teenager under age 16, then the employer must obtain an Eligibility to Work form from the teenager’s school.
Employers must post a Child Labor Law poster.
Employers must comply with record keeping requirements, including:
- A copy of an Employee Information form for each teenager, which can be found here: Employee Information Form
- Proof of Age. Acceptable proof of age includes a copy of a birth certificate or a driver’s license.
- Time records showing hours worked.
Employees under age 16 must receive a 30 minute break for every 5 hours worked.
During the school year, no teenage employee may work between 10 p.m. and 5 a.m. on any night proceeding a school day.

In addition to Alabama law, employers should be knowledgeable of the child labor requirements from the United States Department of Labor. The DOL has published a web page with extensive information on child labor laws. Here is the page answering questions for non-agricultural jobs: DOL Non-Agricultural Jobs. Both Alabama law and federal law restrict employment of teenagers in “hazardous” jobs and employers should review the lists of hazardous positions to ensure that they are not inadvertently violating the law. In particular, employers should be aware that employees under age 18 are prohibited from holding most jobs that require driving a motor vehicle on a public road or highway.

The foregoing discussion merely touches the high points of summer employment for teenagers, and employers should be careful to comply with the law.

NLRB: Drop the F-Bomb and Keep Your Job

April 26, 2017Robert C. Lockwood

F-Bomb NLRA NLRB — The NLRA may protect an employee who drops an F-Bomb about his supervisor.

What would you do if one of your employees made the following comment about a manager on Facebook?

Bob is such a NASTY MOTHER F!$%@& don’t know how to talk to people! ! ! ! ! ! F!@$ his mother and his entire f!@$ng family! ! ! ! What a LOSER! ! ! ! Vote YES for the UNION! ! ! ! ! ! !

Most employers would probably fire the employee, and that’s exactly the course of action taken by the employer in NLRB v. Pier Sixty, LLC, No. 15–1841–ag (L), 2017 WL 1445028 (7th Cir. Apr. 21, 2017). But, the National Labor Relations Board (“NLRB”) found that the employee engaged in protected, concerted activity and ordered his reinstatement with back pay. The Seventh Circuit Court of Appeals affirmed last week.

Section 7 of the National Labor Relations Act grants employees the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. That right applies to non-unionized workers as well as unionized workers. Sections 8(a)(1) and 8(a)(3) of the NLRA, prohibit employers from discharging employees for participating in protected, union-related activity under Section 7.

But, not all statements made in the course of union activity are protected. “[E]ven an employee engaged in ostensibly protected activity may act ‘in such an abusive manner that he loses the protection’ of the NLRA.” Pier Sixty, 2017 WL 1445028 at *5. Nevertheless, the Seventh Circuit in Pier Sixty found that the employee’s statements were not sufficiently “abusive” for him to lose the NLRA’s protection. The Court relied upon three factors in affirming the NLRB. First, the “subject matter” of the statement concerned workplace conditions — treatment of employees by management and a union election. Second, Pier Sixty consistently tolerated profanity from employees, and never sanctioned an employee for profanity before this occasion. Third, the “location” of the employee’s comments was an online forum, “which a key medium of communication among coworkers and a tool for organization in the modern era.” Id. at *8.

The Court tried to limit the impact of its ruling by finding that this case involved the “outer-bounds of protected, union-related comments, and any test for evaluating ‘opprobrious conduct’ must be sufficiently sensitive to employers’ legitimate disciplinary interests.” Id.

Obviously, context is key. A employee who randomly complains about a manager’s deficiencies on Facebook will almost have less protection than an employee who is engage in union-organizing activities. And, the union organization was clearly the factor that tipped the scale in Pier Sixty. Even so, Pier Sixty provides a cautionary tale for employers, who should proceed cautiously before terminating an employee on the basis of Facebook comments.

E-mail: Stating the Reasons for Termination Can Lead to Liability

April 17, 2017Robert C. Lockwood

e-mail employer litigation — E-mails stating the reasons for termination can come back to haunt employers in litigation.

Anything you say can, and will, be used against you in a court of law. That familiar phrase comes from criminal law as part of a criminal suspect’s Miranda rights. But, it applies equally well in employment discrimination cases. Anything that an employer says about an employee can, and will, be used by the employee to prove discrimination. Moreover, by putting it in an e-mail, the employer preserves the evidence for the employee’s benefit.

One employer learned that lesson the hard way in Stewart v. Wells Fargo Bank, N.A., No. 5:15-cv-00988-MHH (N.D. Ala. Mar. 14, 2017). In Stewart, the employee was hired in 2012 and had a documented history of poor performance in 2012 and the first half of 2013. She received a formal performance warning on June 26, 2013. When she received that warning, she informed her supervisor that she was having health issues that needed to be resolved. On July 9, 2013, Wells Fargo granted FMLA leave to Stewart for neck surgery, and she returned to work on August 26, 2013.

On October 5, 2013, the supervisor sent an e-mail to Wells Fargo’s Human Resources Office recommending termination of Stewart’s employment. While that e-mail detailed several performance issues, it also stated termination was justified because “Debby submits a request for medical leave.”

Those seven words were sufficient to submit the case to a jury. The trial court found the statement sufficient to constitute “direct evidence” of discrimination. Direct evidence is evidence that shows a direct correlation between a discriminatory or retaliatory attitude and the employment action complained of. Once an employee submits direct evidence of discrimination, the employer’s asserted reasons for termination can only be decided by a jury. Thus, the trial court in Stewart, refused to dismiss Stewart’s claims and allowed a jury to decide whether poor performance or FMLA leave was the real reason for termination.

Employers should take the Stewart case as a cautionary tale about the necessity of thoroughly training supervisors. The facts in Stewart indicate that there were plenty of performance reasons for terminating the employee. But, the supervisor went beyond those reasons and listed protected conduct as a reason for termination. And, once that reason was listed, the employer was stuck with it. Employers should carefully train their supervisors on permissible and impermissible grounds for termination, and further train them on the proper way to document poor performance.

Here’s One Strategy for Challenging EEOC Document Requests

April 11, 2017April 11, 2017Robert C. Lockwood

EEOC documents — In appropriate circumstances, employers can challenge the EEOC’s requests for documents

The United States Equal Employment Opportunity Commission is required to review many claims for discrimination, including claims under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. In the course of investigating discrimination claims, the EEOC frequently asks employers to produce documents related to the claim. If the employer refuses to produce documents, the EEOC can issue an administrative subpoena and ask federal courts for assistance in enforcing the subpoena.

A Wendy’s restaurant franchisee in Tennessee recently won a victory for employers in resisting a far-reaching document request. EEOC v. Southeast Food Svcs. Co, No. 3:16:MC-46-TAV-HGB, 2017 WL 1155040 (E.D. Tenn. Mar 27, 2017). In that case, the franchisee offered a promotion to an employee, but required the employee to sign a release of all potential claims in order to receive the promotion. Even though she possessed no claims, the employee refused to sign the release. As a result, the franchisee withdrew the promotion offer. Thereafter, the employee claimed that withdrawal of the promotion was discriminatory. The franchisee admitted the reasons for withdrawing the promotion, but denied any discrimination.

While investigating the employee’s claim, the EEOC submitted a document request and a subpoena seeking the identity and contact information of all: (1) current and former employees since December 4, 2012; (2) current and former employees who signed a release since December 4, 2012; and, (3) current and former employees promoted since December 4, 2012. When the franchisee refused to provide that information, the EEOC filed an application in federal court for enforcement of the subpoena.

The EEOC’s subpoena authority is broad. It can obtain any information that is : (1) related to unlawful employment practices; and, (2) relevant to the charge under investigation. 42 U.S.C. § 200e-8(a). Most disputes with the EEOC focus on the relevancy requirement. In the Wendy’s case, the Court found that the EEOC did not meet its burden of demonstrating relevance. While the request for information might be relevant to other potential claims, it was not relevant to this case, where it was undisputed that the promotion was denied for failure to sign the release.

The Tennessee court relied heavily upon the Eleventh Circuit’s decision in EEOC v. Royal Caribbean Cruises, 771 F.3d 757 (11th Cir. 2014). In that case, the Eleventh Circuit noted that the term “relevant” has been generously construed in the EEOC’s favor, but that it should not be so broadly construed as to render the relevancy requirement ” a nullity.” Id. at 760. The Eleventh Circuit recognized that, sometimes, broad-reaching requests might be necessary, “where statistical data is needed to determine whether an employer’s facially neutral explanation for the adverse decision is pretext for discrimination.” Id. at 761. But, like the Wendy’s court, the Eleventh Circuit found that expansion of an investigation for discovery of potential, other claims was not a “relevant” reason.

Employers should carefully consider whether to resist a request for documents from the EEOC. In many cases, the EEOC requests legitimate, “relevant” information related to a charge of discrimination, and employers should comply with information requests in those cases. But, in some cases, the EEOC is clearly attempting to expand the scope of an investigation beyond the parameters of a particular case. The Wendy’s case and the Royal Caribbean case provide employers with good arguments for contesting those types of subpoenas.

FLSA: Restaurant Owners Can Take Tips From Employees

April 5, 2017Robert C. Lockwood

Resaturant FLSA tips minimum wage — The FLSA does not prohibit restaurant owners from taking the tips of employees who are otherwise paid the minimum wage.

In a one-sentence opinion, the Eleventh Circuit Court of Appeals recently held that the Fair Labor Standards Act (“FLSA”) does not prohibit restaurant owners from taking the tips of their employees:

Having carefully considered the written submissions and the arguments of the parties and of the amicus curiae, we conclude there is no free standing claim for relief under Section 203(m) of the Fair Labor Standards Act, 29 U.S.C. § 203(m), where, as here, there is no allegation that the employer does not pay the minimum wage.

Aguila v. Corporate Caterers IV, Inc., No. 16-15838, 2017 W 1101081 (11th Cir. Mar. 24, 2017).

With that one sentence, the Court affirmed the decision of the trial court in Auguila v. Corporate Caterers, II, Inc., 199 F.Supp.3d 1358 (S.D. Fla. 2016). In that case, the plaintiffs were delivery drivers who claimed that they were supposed to receive tips, but their employer retained some or all of those tips. They did not claim that their employer failed to pay them minimum wage.

At its heart, the FLSA is designed to ensure that employees are paid: (1) minimum wage; and, (2) applicable overtime. Section 203(m) of the FLSA deals with the minimum wage for tipped employees. It allows employer to pay less than the federally-mandated minimum wage by using the employees’ tips as part of wages. In short, the employer-paid wage, plus tips, should exceed minimum wage. This “tip credit” is frequently misused by employers, who are then sued under the FLSA for failing to pay the correct minimum wage.

But, the employees in Aguila did not claim that they were paid less than minimum wage. Instead, they argued that Section 203(m) of the FLSA gave them an independent right to retain their tips. The employees were asking the Court to expand the scope of the FLSA beyond minimum wage and overtime to include a new right to retain tips. They based their arguments on 2011 regulations issued by the United State Department of Labor and a decision from the Ninth Circuit Court of Appeals (traditionally one of the most liberal federal courts). Despite those arguments, the trial court and the Eleventh Circuit in Aguila declined to expand the FLSA.

Aguila should not be taken as carte blanche authorization for employers to seize their employees’ tips. Aside from morale problems, employees could potentially sue in state court for fraud and conversion — both of which carry the possibility of punitive damages. Instead, Aguila should merely be read as a decision limiting the scope of federal power over employers.

FMLA Doesn’t Protect Sleeping On The Job

April 3, 2017Robert C. Lockwood

FMLA Sleep — The FMLA Doesn’t Protect Employees Who Sleep On The Job

The Eleventh Circuit Court of Appeals recently rejected an attempt by an employee to use the FMLA as a shield to prevent her termination for sleeping on the job. Feise v. North Broward Hosp. Dist., No. 15-15261, 2017 WL 1101402 (11th Cir. Mar. 24, 2017). In Feise, the employee was a nurse who took FMLA leave in August 2013 and returned to work in September. Ten days after returning to work, Feise was terminated for sleeping on the job. Feise claimed that she was terminated in retaliation for using FMLA leave.

For purposes of appeal, the Eleventh Circuit assumed that Feise could prove a basic, prima facie case of FMLA retaliation. Instead, the Court focused upon the employer’s reason for termination and Feise’s response. The reason for termination was clear — sleeping on the job. Therefore, the burden shifted to Feise to show that sleeping on the job was not the real reason for her termination.

In an attempt to meet her burden, Feise compared herself to other employees who committed misconduct, but were not fired. First, Feise claimed that a medical technician committed misconduct which was worse than sleeping on the job — abandoning supervision of an at-risk child. Yet, the Eleventh Circuit rejected that attempt: “On-the-ground determinations of the severity of different types of workplace misconduct and how best to deal with them are exactly the sort of judgments about which we defer to employers.” Second, Feise compared herself to a medical technician who was not fired for sleeping on the job. Again, the Eleventh Circuit rejected that attempt, finding that the technician produced a doctor’s excuse for sleeping on the job, and that there was a qualitative difference between a nurse (Feise) and a medical technician.

The Court found that Feise failed to meet her burden and affirmed dismissal of her FMLA retaliation claim. Feise provides two lessons for employers. First, an employer can terminate an employee, even in close proximity to protected conduct like FMLA leave. Second, to protect themselves from retaliation law suits, employers need to discipline similar employees in a similar manner. If the employer in Feise had retained other nurses who slept on the job, but terminated Feise, the outcome of the case could have been much different.

Retaliation: Employees on Thin Ice Can’t Save Their Jobs with Discrimination Complaints

March 2, 2017Robert C. Lockwood

Thin Ice retaliation — Employees on thin ice can’t save their jobs by making insincere claims of discrimination.

People don’t like to get fired from their jobs. Thanks to the wonders of the internet, many employees also know that several employment laws (like Title VII of the Civil Rights Act of 1964) prohibit retaliation for making complaints of discrimination. As a result, employees who know that their jobs are in trouble will frequently make last-minute claims of discrimination in the hope that their employer will not fire them — for fear of a retaliation law suit.

This tactic has become so commonplace that the Eleventh Circuit Court of Appeals has developed a line of cases which protect employers from such retaliation law suits. Those cases focus on the concept of causation. As part of his/her case, an employee claiming retaliation must show that termination was caused by the discrimination complaint. In most cases, close timing between the complaint and termination is sufficient to establish causation. But, there are exceptions to every rule, and the Eleventh Circuit has created an exception to the general rule on causation. Close timing “between the protected activity and the adverse action alone generally cannot show causation when the employer has contemplated the adverse action before the protected activity takes place.” Tucker v. Florida Dept. of Transport., No. 16-10420, 2017 WL 443632 at *3 (11th Cir. Feb. 2, 2017).

In short, if an employer is contemplating termination before an employee claims discrimination, then the employee must show more than close timing if he/she wants to win a retaliation claim. The Eleventh Circuit provides the following rationale for that rule: “Title VII’s anti-retaliation provisions do not allow employees who are already on thin ice to insulate themselves against termination or discipline by preemptively making a [ ] complaint.” Id.

As a practical matter, I strongly encourage any employer “contemplating” termination to have documentation in support of termination prior to making the decision. Additionally, employers should also proceed cautiously any time an employee complains about discrimination. Sometimes, even last-minute discrimination complaints have merit, and employers should ensure that no discrimination occurs in the workplace.

Belief “From the Heart” Cannot Prove Discrimination

February 22, 2017Robert C. Lockwood

Belief heart discrimination — A belief “from the heart” is insufficient to prove discrimination.

I frequently tell clients: “There’s a difference between what you know and what you can prove.” A quick internet search tells me that I’ve been stealing that line from Tom Cruise in “A Few Good Men.” Even so, the maxim is really the foundation for our court system. Even if you know something “in your bones” (as my Dad used to say), you have to provide admissible evidence in court. The Eleventh Circuit Court of Appeals recently hammered that point home in a recent Title VII discrimination case: Mells v. Secretary Dept. of Veterans Affairs, No. 15-14251, 2017 WL 60387 (11th Cir. Feb. 15, 2017).

In Mells, an employee sued for racial discrimination arising from denial of a promotion. The undisputed evidence showed that a four-person interview panel ranked Ms. Mells lower than other applicants. Nevertheless, Ms. Mells argued that a biased supervisor selected the four-person panel. Ms. Mells believed “in her heart” that there was a possibility that the interview panel was swayed by the biased supervisor.

The Eleventh Circuit rejected that argument: “Although Ms. Mells may be inclined to follow her heart, we, like the district court, are required to follow the evidence.” The Court found no evidence that the interview panel was biased or swayed by the supervisor. As a result, the Court affirmed dismissal of her claims. Notably, the Eleventh Circuit rejected these matters of the heart on the day after Valentine’s day, but there is no reference to Valentine’s in the opinion.

Mells provides two lessons. First, it demonstrates the benefits of using interview panels in hiring and promotion decisions. If an applicant later attempts to sue for discrimination, they face a heavy burden to show bias of the entire panel. Second, in every case, employees (and employers) must present more evidence than mere “belief” if they want to win.

ADA: Job Descriptions Are Crucial For Proving Essential Functions

February 20, 2017Robert C. Lockwood

ADA essential functions job description — ADA: Job descriptions help to determine the essential functions of the job

Employers need to draft job descriptions for each class of employees in their workplace. The importance of good job descriptions was recently reinforced in an Americans with Disabilities Act (“ADA”) decision from Morgan County, Alabama. Bagwell v. Morgan County Commission, No. 15-15274, 2017 WL 192694 (11th Cir. Jan. 18, 2017).

Under the ADA, only a “qualified” individual with a disability can sue for discrimination. A “qualified” individual is one who can perform the “essential functions” of their job, with or without reasonable accommodation. Thus, employers sued for disability discrimination frequently argue that an employee cannot perform the essential functions of their job.

In the Eleventh Circuit (which includes Alabama), federal courts “give substantial weight to an employer’s judgment as to which functions are essential.” Bagwell, 2017 WL 192694 at * 2. In Bagwell, the Eleventh Circuit Court of Appeals affirmed the trial court, which found that every activity listed in a job description was an essential function of the plaintiff’s job. The plaintiff was employed as a groundskeeper, and her job description required the ability to traverse uneven and wet surfaces, standing and walking. But, the plaintiff could not perform those essential functions safely and consistently because of her condition. As a result, the Eleventh Circuit found that the plaintiff was not “qualified” and affirmed dismissal of her ADA claim.

While it is possible for an employer to argue about “essential functions” even where no job description exists, Bagwell demonstrates that a written job description can be an effective aide in defending ADA claims.

Birmingham’s Minimum Wage Ordinance Suffers Another Setback

February 6, 2017Robert C. Lockwood

Birmingham minimum wage — A federal judge rejected an effort to enforce Birmingham’s minimum wage ordinance.

On February 1, 2017, United States District Court Judge David Proctor rejected an attempt to force businesses to comply with Birmingham’s minimum wage ordinance. In February 2015, the Birmingham City Council passed an ordinance requiring all businesses to pay a minimum wage of at least $10.10 per hour. The federally-required minimum wage is $7.25 per hour, and Alabama does not have a state-mandated minimum wage.

In response to Birmingham’s ordinance, in 2016 the Alabama Legislature enacted the Alabama Uniform Minimum Wage and Right-to-Work Act. That Act establishes the Legislature’s “complete control” over minimum wage policy in the State. After passage of that Act, Birmingham declined to enforce the minimum wage ordinance, and Alabama Attorney General Luther Strange advised Birmingham businesses on the enforcement of the ordinance.

The NAACP, Greater Birmingham Ministries and several individuals sued the State of Alabama, the City of Birmingham, Attorney General Strange and Birmingham Mayor William Bell. Primarily, this was a race-based challenge to the Alabama Act. The plaintiffs claimed that the purpose and effect of the Act was to transfer control over minimum wages and all matters involving private sector employment in the City of Birmingham from municipal officials elected by a majority-black local electorate to legislators elected by a statewide majority-white electorate.

Judge Proctor dismissed the law suit primarily under the legal doctrine of standing. Essentially, Judge Proctor found that the City and State officials were not responsible for any damages that the individual plaintiffs might suffer. Instead, local employers who refuse to comply with the Birmingham minimum wage ordinance would cause the damage: “[N]othing this court could order Attorney General Strange or the City Defendants to do will affect Plaintiffs’ wages. Plaintiffs’ employers set those wages and it is the courts who will determine whether there is any violation of law with respect to the setting of those wages.”

Judge Proctor’s decision provides some reassurance to Birmingham employers that they are only subject to the federally-mandated minimum wage. Nevertheless, his decision leaves open the possibility that individual employees might sue their employers for violating the Birmingham minimum-wage ordinance. Undoubtedly, any employers sued under the ordinance will raise the Alabama Uniform Minimum Wage and Right-to-Work Act as a defense.

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