Snow Day! It’s a glorious phrase to school kids everywhere, and a massive pain for employers. Here in North Alabama, commerce was dragged to a halt yesterday by a dusting of snow. While my friends in the North scoff, we play it safe in the Deep South even when there’s a possibility of ice. As a result, employers need to think about the legal ramifications of inclement weather.
Let’s first focus on the “coldhearted” (pun intended) employers out there. Some businesses cannot or do not close in the face of snow. While surfing Twitter yesterday, I came across this interesting news story from Memphis: Employers Can Legally Fire You for Not Coming To Work In Bad Weather. It provides a correct analysis of the employee-at-will doctrine and its application to snow days — both in Tennessee and Alabama. In most cases, if an employee does not possess an employment contract, and refuses to come to work because of weather, he or she can be terminated from employment.
Most employers will probably be more concerned about whether they are required to pay employees for snow days. This question implicates the Fair Labor Standards Act (“FLSA”). If the employer closes the business because of weather, it is not required to pay hourly, non-exempt employees for the time off. The employer can allow such employees to use Paid Time Off to cover the absence, or consider the time-off unpaid. As a practical matter, many employers pay employees, even though it’s not required, in the interest of employee relations.
Weather days for overtime-exempt employees are more difficult. If an employer is open-for-business, but the employee chooses to stay home, the employee is not entitled to pay for the day. The employer can dock the employee’s salary in full-day increments without violating the salary-basis test of the FLSA. In contrast, if the employer closes the business, the employee’s full salary must be paid for the week — even though he or she may not have worked a full work week.
For Alabama employers, I hope that this post helps you to enjoy the snow while understanding your obligations to employees.
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.
The Alabama Supreme Court recently upheld an award of $600,000 in compensatory damages to an “at will” employee who sued his employer for fraud. SeeFarmers Insurance Exchange v. Morris, No. 1121091, 2016 WL 661671 (Ala. Feb. 12, 2016). In Morris, the employee was working as an independent insurance agent at his father’s insurance agency. He wanted to continue working for his father, but also join Farmers Insurance Company as an agent. He repeatedly asked Farmers representatives if he could work for both his father and Farmers. He was told that such a relationship was permissible. Although there was conflicting evidence, the jury found that the employee was ultimately terminated by Farmers because of a conflict of interest policy which actually prohibited the employee from working for both Farmers and his father.
The employee argued that Farmers fraudulently induced him into giving up business with his father’s agency — business which Farmers retained after termination. A crucial element of fraud is detrimental reliance — the recipient of a promise takes detrimental action in reliance on the promise. In this case, the employee claimed that he detrimentally relied upon Farmers’ promise that there was no conflict of interest.
Farmers argued that the employee was an “at will” employee of Farmers, who could be terminated from employment at any time. As a result, he could not rely upon his belief that he would continue to work at Farmers and receive payment from Farmers in the future. The Alabama Supreme Court rejected that argument: “When an employee leaves one job for another based on a representation by the new employer regarding the new job that is not true at the time it is made, the new employer cannot hide behind the fact that Alabama law enforces or reads into the new employment contract an ‘at will’ clause to avoid the consequences of its fraud.”
The key lesson for employers is to attempt to learn all of the promises made to potential employees in the course of interviews. This can be a difficult task, but the key is documentation. In the course of interviews, executives need to make comprehensive notes of the questions asked by applicants and the answers given by the executive. With that documentation, employers can better defend potential claims for fraud based upon the interview process.