Alabama Employment Law

Discrimination: Sometimes, ignorance is a good excuse.

Robert C. Lockwood
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If a decision maker lacks knowledge of an employee’s protected class, an employer may possess an additional defense to discrimination claims.

We’ve all heard the phrase:  “Ignorance of the law is no excuse.”  Indeed, that point has been driven-home to at least one employer in Alabama:  Ignorance of the Law is No Excuse  While ignorance of the law is not a good excuse, sometimes, ignorance of the facts can provide employers with a defense to employment discrimination claims.

The vast majority of federal employment laws only prohibit intentional discrimination.  As a result, if a decision-maker possesses no knowledge (i.e. ignorance) of an employee’s protected status, then numerous decisions hold that there was no intentional discrimination.  For example, an employee suing under the Americans with Disabilities Act must prove that he or she was fired “because of” a disability.  But, the Eleventh Circuit Court of Appeals has clearly held that “a decision–maker who lacks actual knowledge of an employee’s disability cannot fire the employee ‘because of’ that disability.”  Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1186 (11th Cir. 2005).  The Court has reached similar conclusions in cases involving allegations of: religious discrimination under Title VII of the Civil Rights Act of 1964, Lubetsky v. Applied Card Sys., 296 F.3d 1301, 1306 (11th Cir. 2002)(” an employer cannot intentionally discriminate against an individual based on his religion unless the employer knows the individual’s religion.”); and,  retaliation under Title VII,  Brungart v. BellSouth Telecomm., Inc., 231 F.3d 791, 799 (11th Cir.2000) (“A decision maker cannot have been motivated to retaliate by something unknown to him.”).

This post is not intended to encourage employers and decision makers to remain blissfully ignorant of issues in the work place.  Indeed, ignoring work conditions can quickly lead to more law suits.  But, if a decision maker was truly unaware that a terminated employee was part of a protected class, then there is a potential defense to an employment discrimination claim.

Even If Employee Violates Non-Compete, Employer Must Still Prove “Irreparable Injury”

Robert C. Lockwood
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Employers have to prove they are harmed when a former employee goes to work for a competitor.

Employers frequently require employees to sign non-competition agreements.  Generally, those agreements are used to protect employers from the risk that training and information given to an employee can be used by a competitor.   But, an employee’s decision to work for a competitor does not mean that the employer will automatically win a law suit for violation of a non-competition agreement.  Instead, the employer is also required to show that it will suffer “irreparable injury” if the employee works for a competitor.  See Transunion Risk and Alt. Data Sol., Inc., v. Challa, No. 16-11878, 2017 WL 117128 (11th Cir. Jan. 12, 2017).

TransUnion Risk and Alternative Data Solutions, Inc. (“TRAD”) and its competitor IDI, Inc. work in the “data fusion” field — their products aggregate fragmented information about people, businesses and assets.  Challa worked for TRAD in the development of its data fusion software. He wrote code for the software and worked on integrating data into the software.  Challa signed a one-year non-competition agreement while working for TRADS.  Immediately, after leaving TRADS in 2014, he began working for its competitor, IDI.

TRADS sued Challa for violating the non-competition agreement and asked for a preliminary injunction to force him to stop work immediately.  The trial court and the Eleventh Circuit found that there was no question that Challa violated the non-competition agreement because he went to work for a competitor.

Even so, TRADS didn’t win.  To obtain a preliminary injunction, TRADS was required to prove that it would suffer “irreparable injury” if Challa worked for IDI.  The trial court and the Eleventh Circuit found insufficient evidence of such “irreparable injury.”  The decision relied upon several key facts.  First, the trial court believed Challa, who claimed that his job at IDI was hardware-centric, but that his job at TRADS had been software-focused.  Second, the data fusion industry is rapidly evolving, minimizing the usefulness of any proprietary knowledge that Challa possessed.  Finally, the court believed Challa when he claimed he would not reveal any of TRADs’ proprietary knowledge to IDI.

TRADS argued that “the mere possibility that Challa might at any point divulge confidential information” required a finding of irreparable injury.  But, the Eleventh Circuit disagreed. Harm is irreparable if it is “actual and imminent.”  But, TRADS’ argument would require a finding of irreparable injury even when the potential harm was prospective and wholly speculative.

Potentially, Transunion Risk is an outlier case, where a trial court made credibility determinations that benefited the employee.  Nevertheless, Transunion Risk also provides an important warning to employers.  Your former-employee’s presence at a competitor does not automatically mean that you can enforce a non-competition agreement.  Instead, you also need to produce substantial evidence of the harm that his/her presence at the competitor will cause.

Judge Kallon Provides Guidance For Employers Faced With a “Direct Threat” Under the ADA

Link Robert C. Lockwood
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Judge Abdul Kallon recently found that an employee with a hearing impairment posed a direct threat to himself or others under the ADA.

A recent decision from an Alabama federal judge provides guidance to employers who are attempting to determine if an employee’s disability is a “direct threat” under the Americans with Disabilities Act.  See Lewis v. United States Steel Corp., No. 2:14-cv-01965-AKK (N.D. Ala. Dec. 20, 2016).  Alonzo Lewis was an “oiler” at U.S. Steel’s Fairfield, Alabama plant.  U.S. Steel used audiovisual warning systems to alert employees that cranes, forklifts and/or trailcars were in motion in the plant.

Lewis is hearing impaired and admitted that sometimes he could not hear alarms in the plant. After a supervisor noticed that Lewis did not react to an alarm, U.S. Steel required him to undergo a hearing test.  When Lewis failed the test, U.S. Steel refused to allow him to enter the facility and began the process of attempting to find a reasonable accommodation. Unfortunately, U.S. Steel could not identify any jobs in the facility which did not involve exposure to the mobile equipment.  As a result, U.S. Steel terminated Lewis’s employment.

Lewis sued under the Americans with Disabilities Act.  While his hearing disability was uncontested, U.S. Steel claimed that he was a “direct threat” to his own health and safety or the safety of others.  Lewis claimed that he was not a direct threat, because he worked in the U.S. Steel facility for eight years without incident.  He relied upon a decision from United States District Court Judge Madeline Haikala to support that argument. I wrote about Judge Haikala’s opinion here:  https://employingalabama.com/2016/08/29/trust-doctor-violate-ada/

United State District Court Judge Abdul Kallon provided employers with an important distinction from Judge Haikala’s analysis of the direct threat defense.  In Judge Haikala’s case, there was no “individualized or objective proof” that the employee posed a direct threat to himself or others.  In the Lewis case, however, Judge Kallon found that the failed hearing test was “objective, individualized evidence” that could be relied upon by U.S. Steel to make an employment decision.  Because  Lewis was a direct threat, Judge Kallon found that his ADA case should be dismissed.

Judge Kallon also provided an alternative basis for dismissal.  He found that U.S. Steel possessed a nondiscriminatory reason for termination:  “safety concerns due to his inability to hear warning signals.”  Lewis failed to demonstrate that U.S. Steel’s safety concerns were not legitimate concerns, so Judge Kallon found another reason for dismissal.

Judge Kallon’s reliance on “individualized, objective evidence” provides effective guidance for employers when considering whether an employee poses a direct threat to himself or others.  If an employer possesses individualized, objective evidence that the employee poses a danger, then the employer is more likely to win an ADA discrimination case.

Cell Phones and Computers Increase Workers’ Compensation Risks

Robert C. Lockwood
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Cell phones and computers can increase the possibility of liability under the Alabama Workers’ Compensation Act

Alabama employers who provide employees with cell phones and laptop computers are increasing their exposure to claims for benefits under the Alabama Workers’ Compensation Act.  See Hospice Family Care v. Allen, No. 2140961, 2016 WL 3223297 (Ala. Civ. App. Jun. 10, 2016).  Suzanne Allen was a hospice nurse who was required to drive around North Alabama treating patients. Her employer did not provide a car, but paid mileage on her personal vehicle.  The employer also provided Ms. Allen with a cell phone and laptop computer.  Ms. Allen’s work schedule was from 8:00 a.m. to 4:30 p.m., but her employer encouraged her to go home after seeing her last patient, rather than returning to the office each day.  Ms. Allen was killed while driving home on February 3, 2014 at 3:46 p.m., when her car was struck by a vehicle in the wrong lane.

Courts in Alabama usually follow the “going and coming rule.”  Under that rule, the Alabama Workers’ Compensation Act generally does not cover an accident which occurs while a worker is traveling on a public road while going to or coming form work.  Thus, the employer in Hospice Family Care argued that Ms. Allen’s accident was not covered by the Workers’ Compensation Act, because she was unquestionably travelling home.

Based upon the facts of the case, however, a trial court and the Court of Civil Appeals found that Ms. Allen’s accident was covered.  In particular, the court noted that Ms. Allen was provided a laptop computer and cellphone and she regularly worked on patient charts for two hours after arriving home.  As the court put it, “nurses were encouraged to go home to complete their required tasks.”  Because Ms. Allen was “going home to complete a required task,” the Court found that her drive home was in the furtherance of the business of Hospice Family Care and, therefore covered by the Workers’ Compensation Act.

Unquestionably, technology provides a great benefit to all employers.  With that benefit, however, comes additional risks.  Hospice Family Care demonstrates one of those risks.  If employers encourage employees to work from home, and provide the technology to do so, then accidents that would not ordinarily be covered could potentially be subject to the Alabama Workers’ Compensation Act.

ADA: Indefinite Extension of Leave Is Not a Reasonable Accommodation

Robert C. Lockwood1 Comment
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Indefinite Leave Is Not a Reasonable Accommodation Under the ADA.

Employers are not required to give indefinite extensions of leave as a reasonable accommodation under the Americans with Disabilities Act (“ADA”).  Luke .v Board of Trustees of Fla. A&M Univ., No. 15-13995, 2016 WL 7404677 (11th Cir. Dec. 22, 2016).  In Luke, the plaintiff was a patrol office for the Florida A&M University police department.  She injured her knee and took leave in September 2013.  On June 10, 2014, after an approved nine-month leave, she requested an extension of leave based upon her doctor’s assessment that she would be unable to work patrol shifts for “at least another six months.”  Florida A&M denied that request and terminated her employment.

The Eleventh Circuit Court of Appeals affirmed the dismissal of the patrol officer’s ADA law suit. Among other things, the officer claimed that Florida A&M failed to provide her with a reasonable accommodation, when it refused to extend her leave.  The Eleventh Circuit rejected that argument:  “While a leave of absence might be a reasonable accommodation in some cases … an accommodation is unreasonable if it does not allow someone to perform his or her job duties in the present or in the immediate future.”  Luke, 2016 WL 740467 at *3 (emphasis added).  The Court found that the six-month extension request did not satisfy the “present or immediate future” requirement.

The Luke decision provides an interesting contrast to the position taken by the EEOC regarding leave as a reasonable accommodation.  On May 9, 2016, the EEOC published its position that employer-provided leave is a required accommodation under the ADA.  That publication can be found here:  EEOC ADA Leave Publication

The EEOC’s position avoids any reference to the Eleventh Circuit’s “present or immediate future” requirement.  Instead, the EEOC seeks to shift the burden to employers to prove that a particular leave would an “undue burden.”  Fortunately for employers, the Eleventh Circuit does not appear to be overly persuaded by the EEOC’s publication.  In the same paper, the EEOC took the position that employers are required to place a disabled employee “in a vacant position for which he is qualified without requiring the employee to compete with other applicants for open positions.”  The Eleventh Circuit rejected that position earlier this month in an opinion that I discussed here:  Job-Competition Policy Can Be a Defense to ADA

Luke provides some guidance to employers — a six month leave request does not meet the “present or immediate future” requirement.  For shorter leave requests, however, employers should proceed with caution, because the Eleventh Circuit has not provided guidance on the “immediate future” requirement.

Asperger’s at Work: Potential for Conflict Between Title VII and ADA

Robert C. Lockwood
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A recent decision from the Eleventh Circuit Court of Appeals demonstrates difficult decisions that may face employers when they hire employees with Asperger’s syndrome.  Furcron v. Mail Centers Plus, LLC, No. 15-14595, 2016 WL 7321211 (11th Cir. Dec. 16, 2016).  Asberger’s is generally considered a “high functioning” form of autism.  Affected persons “have difficulty with social interactions and exhibit a restricted range of interests and/or repetitive behaviors.” https://www.autismspeaks.org/what-autism/asperger-syndrome

In Furcron, Myra Furcron was a female mailroom clerk, who claimed that she was sexually harassed by Daniel Seligman, a male mailroom clerk suffering from Asperger’s.  Furcron claimed that Seligman attempted to look down her shirt and at her underwear when she bent over.  She also claimed that Seligman would intentionally bump against her and rub his erect penis against her.  When she complained, Furcron’s supervisor responded “that Seligman meant no harm, and that his conduct should be tolerated because of his disability.”  Furcron, 2016 WL 7321211 at *2.  Although a trial court dismissed Ms. Furcron’s claims, the Eleventh Circuit found sufficient evidence of sexual harassment to warrant a jury trial.

Another case involving Asperger’s is Taylor v. Food World, Inc., 133 F.3d 1419 (11th Cir. 1998). In Taylor, the plaintiff suffered from Asperger’s and was a utility clerk who bagged groceries and assisted customers with their groceries.  He was terminated after three customers complained that he was “loud, overly friendly and overly talkative.”  He sued for violations of the Americans with Disabilities Act.  The Court found that one of the essential functions of the job was “the ability to carry out the tasks of the job without offending customers.”  Taylor, 133 F.3d at 1424.  Nevertheless, the Court found sufficient evidence to warrant a jury trial, because some managers and employees testified that they received no complaints and observed no inappropriate behavior.  Additionally, there were questions of fact regarding whether the questions asked by the plaintiff to customers were offensive or inappropriate.

A final case merits discussion, even though it deals with Tourette’s syndrome instead of Asperger’s.  Ray v. Kroger Co., No. 03-12919, 2003 WL 23018292 (11th Cir. 2003).  In Ray, a grocery store employee’s condition caused him to blurt out racial slurs on a daily basis.  As an accommodation to his disability, the store allowed him to pass out cards to customers explaining his condition, and transferred him to the night shift when fewer customers were in the store.  Nevertheless, three customers complained about bizarre and anti-social behavior, and a contractor complained about a perceived racial insult.  The Court affirmed dismissal of Ray’s ADA case, because he could not demonstrate that he could perform the essential function of “interacting with customers without insulting them.”

These cases seem to place employers in a Catch-22 situation.  If they discipline an employee for behavior related to their disability, they face the threat of a law suit for violating the Americans with Disabilities Act.  But, if they fail to discipline the employee, the employee could then commit acts (like the alleged sexual harassment in Furcron) that get the employer sued by other employees or third-parties.

Employer should proceed slowly if they encounter performance issues from employees suffering from Asperger’s, Tourette’s or other conditions that affect behavior.  Ray and Taylor both suggest that it may be possible to discipline such employees without violating the ADA.  To do so, however, employers need to establish, at a minimum that:  (1) the ability to interact with customers and co-workers without offending them is an essential function of the job; and, (2) abundant evidence existed demonstrating the employee’s inability to fulfill that essential function.

Migrant Farm Workers and the Fair Labor Standards Act

Robert C. Lockwood
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Migrant workers and the FLSA
Migrant workers and the FLSA

For purposes of the Fair Labor Standards Act, migrant farm workers can be joint employees of the farm where they work and the company which supplies their services to the farm.  See Garcia-Celestino v. Ruiz Harvesting, Inc., No. 16-10790, 2016 WL 7240150 (11th Cir. Dec. 15, 2016).  The issue of joint employment is raising its head frequently as companies try to limit their liability to the people providing services to them.  As I previously discussed, the issue is frequently whether an employer possesses control over the worker: MY ACHING “JOINTS” – JOINT EMPLOYEES UNDER THE FLSA

In Garcia-Celestino, Basiliso Ruiz provided migrant workers to pick oranges for Consolidated Citrus.  Consolidated paid based upon the number boxes of fruit picked by each worker.  If the worker did not pick enough boxes of fruit to achieve minimum wage, Consolidated Fruit paid additional “build-up pay” to raise the worker to minimum wage.  Unfortunately, Mr. Ruiz then deprived the migrant workers of minimum wage by requiring them to hand-over the “build-up pay” to him under threat of deportation.  Ultimately, the migrant workers sued both Mr. Ruiz and Consolidated Citrus for failure to pay minimum wage under the FLSA.

The primary issue in Garcia-Celestino was whether the migrant workers were joint employees of Consolidated Citrus for purposes of breach of contract and FLSA claims.  The trial court found that Consolidated Citrus was a joint employer for both claims, and relied upon the FLSA’s “suffer or permit to work” standard of “employer” to reach that conclusion.  Under that definition, the ultimate question is whether, as a matter of “economic reality,” the hired individual is “economically dependent” upon the hiring entity.

The Eleventh Circuit found that the trial court incorrectly applied the “suffer or permit to work” standard to the migrant workers’ breach of contract claims.  As a result, the Eleventh Circuit remanded the case for the trial court to determine whether the migrant workers were Consolidated Citrus’s employees under the common-law standard — which focuses mostly on control.  Nevertheless, for purposes of the FLSA minimum wage claims, the Eleventh Circuit found that the trial court correctly applied the “suffer or permit to work” standard, and concluded that Consolidated Citrus was a joint employer for purposes of the minimum wage claims.

Garcia-Celestino provides a cautionary tale for all employers — not just farmers.  If you are contracting-out labor, you run the risk of liability as a joint employer of the contract laborers.

The Dangers of Christmas Hams And Other Workplace Holiday Issues

Robert C. Lockwood
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Christmas is only three days away.  So, I decided to provide a review of three somewhat amusing cases in Alabama involving the interplay of the holidays and the workplace.

Don’t Give Employees Heavy Christmas Hams

Many employers give Christmas hams to employees.  Be warned:  if the ham is too heavy you might wind up paying workers’ compensation.  See Moesch v. Baldwin County Elec. Memb. Corp., 479 So.2d 1271 (Ala. Civ. App. 1985).  In Moesch, the employee injured her back at the end of the work day, when she picked up a 20-pound Christmas ham given by her employer.  The Court found that giving Christmas hams “would tend to boost the morale of employees, which would be beneficial to defendant.”  Moesch, 479 So.2d at 1273.  As a result, the court found that the employee’s injury “arose out of and in the course of” her employment, entitling her to workers’ compensation benefits.

It’s OK to Allow Dancing at Christmas Parties

While ham-based injuries appear to be compensable, dance injuries are not.  See Anderson v. Custom Caterers, Inc., 185 So.2d 383 (Ala. 1966).  In Anderson, an employee was injured as a result of a fall she sustained while dancing at a Christmas party.  The party was held at the employer’s place of business and alcohol was served.  The employee argued, like the employee in Moesch, that the employer received a benefit from the morale boost to employees.  Nevertheless, the Court found that the injury did not arise out of or in the course of employment, and the employee was not entitled to workers compensation.

Holiday Pay Can Save You From an Unemployment Claim

In Etowah County, a steel foundry closed for two weeks over the holidays.  A collective bargaining agreement provided that employees received “holiday pay” and were paid a full day’s wage for Christmas Day and New Years day, even though the foundry was closed.  Despite that generosity, employees claimed that they were unemployed during the two-week closure and sought unemployment benefits.  See Autwell v. State Dept. of Indus. Rel., 249 So.2d 625 (Ala. Civ. App.)  Nevertheless, they could only be considered unemployed if they did not receive “wages” as defined by the unemployment compensation statute.  The Autwell court found that the holiday pay was sufficient “wages” and affirmed denial of the claim for benefits.

 

Merry Christmas and Happy New Year!

If You Can’t Stand the Heat, Don’t File an ADA Claim

Robert C. Lockwood
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An inability to work in summer heat can make an employee unqualified to perform the essential functions of a job under the ADA.

If an employee cannot work outside in the summer heat, she is unqualified for a job that requires outside work and cannot file a claim under the Americans with Disabilities Act.  This point was confirmed by the Eleventh Circuit Court of Appeals in Perry v. City of Avon Park, No. 15-14525, 2016 WL 6819669 (11th Cir. Nov. 18, 2016).  As discussed below,  Perry provides at least two tips for employers to follow.  First, a written job description helps establish the essential functions of a job.  If the employee cannot perform the essential functions found in a job description, it is very difficult to win a claim under the ADA.  Second, employers are not required to change their job descriptions as an accommodation to employees with medical conditions.

In Perry, the employee was employed as a maintenance technician/assistant.  Her primary duties took place outside doing manual labor in Avon Park, Florida.  Ms. Perry was recovering from breast cancer and also suffering from mental health issues.  A physician placed work restrictions on Ms. Perry to avoid direct sunlight and to work no more than four hours outside in temperatures above 50 degrees and below 80 degrees.

The City actually tried to accommodate Mr. Perry and gave her a thermometer with instructions to return to City Hall if temperatures exceeded her threshold.  Because Avon Park is located in South Florida, the temperature restriction was exceeded almost immediately.  When the City asked Ms. Perry’s physician if there was any possibility of accommodating Ms. Perry’s restrictions, the physician stated that there was no way Ms. Perry could work unless the temperature restrictions were met.

The City terminated Ms. Perry’s employment, and she sued under the ADA.  The Eleventh Circuit found that Ms. Perry was not qualified for her position because she could not perform the essential functions listed in her written job description — the majority of which required outside work.  The Court also rejected two “reasonable accommodations” proposed by Ms. Perry.

First, the Court found that Avon Park was not required to change her job description to eliminate the essential function of outside work.  Second, the Court found that Avon Park was not required to abide by the physician’s restrictions, because those restrictions would prevent Ms. Perry from performing the essential function of outside work on a consistent basis.

Perry demonstrates that written job descriptions are extremely important to defending ADA claims.  If an employee cannot perform the essential functions of a job as listed in a job description, it will be very difficult for them to establish a claim for disability discrimination.

 

Job-Competition Policy Can Be a Defense to ADA

Robert C. Lockwood
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Employers Can Require Disabled Employees To Compete For Open Positions Without Violating Reasonable Accommodation Requirements

On Wednesday, the Eleventh Circuit Court of Appeals held that the Americans with Disabilities Act (“ADA”) does not require employers to forego a job-competition policy as part of the reasonable accommodation process for disabled employees.  See EEOC v. St. Joseph’s Hosp., No. 15-14551, 2016 WL 7131479 (11th Cir. Dec. 7, 2016).

In the St. Joseph’s case, Leokadia Bryk was a nurse in the psychiatric ward of St. Joseph’s hospital.  After 7 years on the job, spinal stenosis and a hip replacement caused her to use a cane for assistance walking.  The hospital found that the cane prevented her from performing the essential functions of her job, because psychiatric patients could use the cane as a weapon.

After making that safety determination, the hospital gave Ms. Bryk 30 days to identify and apply for other positions.  The hospital waived its typical internal transfer policy, which would have prohibited Bryk’s transfer, because she received a disciplinary warning. The hospital also made its Manager of Team Resources available to help Ms. Bryk with the process.

The hospital did not waive its policy which required internal applicants to compete for positions. Ms. Bryk applied for a position as an Education Specialist at the hospital and met the minimum requirements for the position.  Nevertheless, the managers hiring the Educational Specialist found that she was not the most qualified applicant and rejected her application.  The hospital terminated Ms. Bryk’s employment when she did not obtain another internal job at the hospital.

The EEOC sued for Ms. Bryk and argued that the reasonable accommodation requirements of the ADA required noncompetitive reassignment of Ms. Bryk to the Education Specialist position because she met the minimum requirements for the job.  The Eleventh Circuit disagreed, finding that “the ADA does not require reassignment without competition for, or preferential treatment of, the disabled.”  St. Joseph’s, 2016 WL 7131479 at *8.  “Passing over the best-qualified applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance.  In the case of hospitals, which is this case, the well-being and even the lives of patients can depend on having the best-qualified personnel.”  Id. at *9.

The Eleventh Circuit left open a small possibility that “special circumstances” might require waiver of a job-competition policy, but did not find any such circumstances in Ms. Bryk’s case.  Thus, St. Joseph’s provides some assurance to employers that, in most cases, they will not violate the ADA’s reasonable accommodation policies by requiring disabled employees to comply with a job-competition policy.