Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

In 1994, Ron Artest of the Indiana Pacers charged into the stands during a NBA game being played in Detroit, and fought with players and fans.  9 different players were suspended for a total of 146 games, costing those players $10 million in salary.  5 players were charged with assault, and all 5 were found guilty.  More recently, Gilbert Arenas and Javaris Crittenton, of the Washington Wizards, were suspended for the remainder of the NBA season as the result of a dispute over a card game on a team flight which escalated into guns being brought into the locker room by both players.  Arenas will lose over $147,000 per game, while Crittenton will lose over $13,000 per game.  Too often, we hear about disgruntled ex-employees, distraught spouses or ex-spouses, or others entering places of business, courts, schools, and even basketball arenas, armed with weapons, and "going postal", killing and injuring innocent people.  Since the beginning of the year, we have heard about people getting killed in Kennesaw, Georgia and St. Louis.  A total of 5 people lost their lives, and 8 were injured.  The FBI estimates that approximately 1 million people are exposed to some form of workplace violence every year. 

Violence in the workplace has no bounds, and can impact any workplace, at any time.  The Houston Chronicle recently published an article entitled "Employers can minimize risk of workplace violence.". The article listed 8 steps that can be taken to prevent or minimize the risk of workplace violence.  These steps are:  Accept reality.  Use effective pre-employment documents and conduct background checks.  Establish policies on workplace violence.  Conduct substance abuse testing.  Develop procedures for investigating threats.  Training supervisors and employees.  Implement an employee assistance program.  Audit and improve security measures. 

In addition to the tragic loss of life and devastating injuries, violence in the workplace can result in severe financial consequences to companies when it occurs.  Employees being killed or injured.  Ongoing counseling.  Lost work time and decreased productivity.  Bad publicity, often nationally.  Workers' compensation lawsuits.  Claims for negligent hiring/retention/supervision. 

Sirote & Permutt is hosting a  seminar on Workplace  Violence on Wednesday, February 17th in our Birmingham office, and it will be simulcast to our Huntsville and Mobile offices.  If you are interested in attending, please follow this link for more information and RSVP details:  seminar  

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The Department of Labor released 3 model notice packages to help group health plans and employers provide notice on the availability of the extension of COBRA continuation coverage under the American Recovery and Reinvestment Act.  The American Recovery and Reinvestment Act was amended by the Department of Defense Appropriations Act of 2010 and extended the eligibility period for 2 months and the duration from 9 to 15 months.  Eligible individuals pay only 35% of their COBRA premiums, and the remaining 65 percent is reimbursed to the employer through a tax credit.  According to Phyllis C. Borzi, assistant secretary of the Labor Department's Employee Benefits Security Administration, "Our action today gives workers and their families useful information to keep important health benefit coverage during these challenging economic times.  We also are making it easy for employers and plans to meet their obligations to provide the notices".  The Department of Labor will be holding a free webcast on January 22, from 1 to 3 p.m (EST) to help employers, plan administrators and service providers comply with the notice requirements.  You can register on line at www.dol.gov/cobra or call Sandra Lynch at 202-693-8671.

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This week, in Harrison v. Benchmark Electronics Huntsville, Inc., the 11th Circuit reversed the trial court's summary judgment in favor of Benchmark (BEHI), and remanded the case for a jury trial.  Harrison was employed by Aerotek, a company that places temporary workers at BEHI.  He worked as a "debug tech", dealing with electronic boards.  Harrison suffered from epilepsy (since the age of 2) and took barbiturates to control his condition.  BEHI had a practice of hiring temporary workers as permanent employees if a supervisor believed that they would meet BEHI's needs.  Harrison submitted an application and took a pre-offer drug test, that was positive for barbiturates.  Although the testimony was in dispute, the evidence most favorable to Harrison indicates that his supervisor, Anthony, found out about the positive drug test and confronted Harrison about it.  Harrison provided a valid prescription, and Anthony called the MRO and passed the phone to Harrison and listened in as he answered questions from the MRO, including the fact that he took barbiturates due to his epilepsy.  After this conversation was overheard by Anthony, Anthony told HR not to prepare an offer letter for Harrison.  Anthony also advised Aerotek not to return Harrison to BEHI, and Aerotek complied, telling Harrison he had a performance and attitude problem and had been accused of threatening Anthony.  Harrison was terminated by Aerotek.

Harrison filed a charge with EEOC, and the EEOC determined that he did not have a disability and thus did not investigate the improper medical inquiry claim.  A right to sue letter was issued to Harrison, and he filed his suit.  The court first examined whether Harrison, a "non-disabled individual", can state a private cause of action for a prohibited medical inquiry in violation of Section 12112(d).  The court found that such a cause of action exists.  The court further found that an employer may conduct follow-up questioning in response to a positive drug test, but these questions are limited by Section 12112(d)(2), which prohibits disability-related inquiries.  "A reasonable jury could infer that Anthony's presence in the room was an intentional attempt likely to elicit information about a disability in violation of the ADA's prohibition against pre-employment medical inquiries". 

Practice pointers.  Although this case was decided under the ADA prior to the 2008 amendments, the logic is still applicable.  Employers must limit their pre-offer inquiries, even with a positive drug test, to non-disability related questions.  Of course, this is very difficult to do.  Additionally, as I have often written, it is important to train supervisors as to what they can and cannot do in relation to the ADA (as well as other employment laws).  The timing of Harrison's termination is certainly suspect.

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The EEOC released fiscal year 2009 statistics this week: although the number of claims was down 2% from 2008's record level, 2009 had the second highest number of complaints ever filed with the EEOC.  According to the New York Times, disability claims rose by 10% to 21,451.  This is most likely due to the passage of the ADA Amendments Act of 2008, which expanded the coverage of the ADA.  The most frequently filed claims were for race, sex and retaliation.  National origin claims rose by about 5%, while religious claims rose by less than 1%.  Stuart Ishimaru, acting chair of the EEOC, was quoted by the New York Times as saying that equal employment opportunity "remains elusive for far too many workers", while urging employers to end discrimination at work. 

Practice pointer.  I anticipate that EEOC claims will remain relatively constant in 2010, and may even increase, based on several factors, including the state of the economy, additional funding for the EEOC, and increased awareness within the workforce of changes in the law and the ability to file claims with the EEOC.

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Last week, the Miami Herald published a story written by Diane Stafford entitled "Ready to hire? Don't ask wrong questions".  The story, referring to an article in The HR Specialist newsletter, listed a number of questions that may be asked during an interview that may be viewed as discriminatory.  Some of the questions listed are:

     Are you married?  Divorced?

     Do you have children? Do you plan to start a family?

     Do you rent or own your home?

     What church do you attend?

     Do you have a disability or illness?

As Ms. Stafford points out, "Some of these questions might seem laughable.  Some might seem logically designed to figure out how responsible and worthy the applicant might be.  But the threat of lawsuits prompts employers to tread carefully in personal probing." 

All of the above brings to light the use of the internet to conduct background investigations on potential employees (and even current employees).  Sources for internet background checks include search engines such as Google, social networking sites such as Facebook and Myspace, high school or college web sites, and even corporate web sites where the applicant worked prior to the application for a new job.  Sites that can be checked  also include news sources, such as newspaper or television websites, public records, such as assets, lawsuits, bankruptcy and home ownership, and the websites of religious institutions.

While many HR professionals will not ask questions such as those set out above, many will not hesitate to use the internet to conduct background checks.  They do so without realizing that they may get answers to questions that they otherwise could not or should not ask in the interview process.  One may be able to determine sex, race, age, family status, religious affiliation and even disabilities by performing internet research. 

Practice pointer.  When conducting internet background checks for potential employees, HR professionals need to be careful where they look and what they do with the information they discover if the information can form the basis for a claim of discrimination if the applicant is not hired.  Using the internet to conduct background checks may lead to claims of discrimination when an applicant is not hired.

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In Corbitt et al. v. Home Depot USA Inc., the 11th Circuit Court of Appeals reversed, in part, the District Court for the Southern District of Alabama's decision dismissing claims for sexual harassment and retaliation in violation of Title VII.  Corbitt and Raya were store managers for the Home Depot in Mobile and Pensacola.  They claimed that the regional human resources manager, Lenny Cavaluzzi, sexually harassed both of them for a period of 9 months.  Cavaluzzi allegedly had multiple personal telephone conversations with the plaintiffs, massaged their necks and shoulders at a corporate meeting, played with their hair and hugged them on numerous occasions.  Plaintiff's complained to various supervisors, but the conduct did not stop.  The conduct only stopped after a supervisor used a Home Depot hotline to report Cavaluzzi.  Both plaintiff's were fired a less than a month later. The trial court granted summary judgment in favor of Home Depot on all claims that were made by the plaintiffs.  In affirming summary on plaintiff's claim for harassment, the Court, in distinguishing sexual harassment from flirtation, held that "Flirtation is part of ordinary socializing in the workplace and should not be mistaken for discriminatory conditions of employment".  The Court reversed the lower courts finding that Home Depot did not retaliate against them by firing them, holding that sufficient evidence was presented that Cavaluzzi and another supervisor influenced the investigation in a way to have the plaintiff's terminated. The Court rejected any suggestion that the fact that the touchings were same-sex made them somehow more severe

Practice pointer.  Same sex harassment (as well as female on male harassment) occurs in the workplace and must be treated as seriously as traditional male on female harassment allegations.  Investigations must be done in a prompt, thorough and complete manner, and appropriate disciplinary actions taken.  As society continues to evolve, I anticipate more of these cases to reach the courts. 

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The case of Ricci v. Destafano continues to make the news.  I have reported on this case in several blog entries, and the most recent activity involves the white and Hispanic firefighters filing papers to pursue their claim for back pay, interest and attorney fees.  This case started in 2003 when the city refused to promote the 14 white and Hispanic firefighters: even though the test they took was race neutral, the city felt the results discriminated against black firefighters since none of the black firefighters who took the test scored high enough to get promoted.  The Supreme Court, in June, ruled in favor of the white and Hispanic plaintiffs, finding that New Haven violated their civil rights by disregarding the test results.  Recently, the plaintiffs received their promotions, and the black firefighters filed suit claiming they were discriminated against.  Now, the attorney for the plaintiffs is pursuing claims for back pay, interest and attorney fees.  According to theAP, Karen Torre, the attorney for the plaintiffs, they were subject to "the humiliation and economic hardship of prolonged career stagnancy in a rancorous atmosphere fostered by raw racial divides."  I will continue to keep you posted as this case progresses. 

Also in the news, President Obama signed into law the 2009-2010 spending bill for the Department of Defense, which includes a provision prohibiting most military contractors from enforcing mandatory arbitration provisions in their employment contracts.  The provision prohibiting arbitration came about as the result of a female employer of a defense contractor, working in Iraq, who claimed she had been raped by co-workers, and the employer attempted to enforce the arbitration provision in her employment contract.  In 6 months, this restriction will also apply to subcontractors. 

Finally, on the overtime front, the New York Times  reported this week that a lawsuit filed on behalf of 27 Mexican farm workers in Mississippi for overtime has been settled.  The employees were working under the federal H-2 Visa program, and claimed they were not paid for hours worked in excess of 40 hours a week.  The amount of the settlement was not disclosed.

I hope all of you have a Joyous Holiday Season and a Happy New Year. 

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Congress recently approved funding the EEOC with $23 million to help reduce the backlog of cases currently pending with the agency, some for as long as 3 years.  According to Ethisphere, staff levels at the EEOC have dropped by approximately 25% over the last several years. Last year, the EEOC saw a 35% increase in backlogged cases.  There are currently tens of thousands of backlogged cases pending with the EEOC.  This is consistent with my November 11, 2009 blog entry indicating that the acting director of the EEOC reported at the annual meeting of the Labor and Employment section of the American Bar Association that they were hiring 250 new employees. 

Practice pointer.  As the new employees come on board for the EEOC, expect both an increase in the disposition of backlogged cases, as well as more aggressive enforcement of the various laws that the EEOC is responsible for. 

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On Monday, December 14, the U.S. Supreme Court agreed to hear arguments in a case from the 9th Circuit (which includes California) to address whether employees of a governmental agency have a constitutional right to privacy in their text messages, sent and received on text pagers provided by the city of Ontario. The Los Angeles Times reported that police officers for Ontario were issued text pagers and advised that there was a limit of 25,000 characters a month, and any text over that limit would have to be paid for by the individual officers.  It was understood by the officers that some messages would be personal in nature and not related to their police work.  When the police chief learned that some officers were regularly exceeding the 25,000 character limit, he asked for an audit.  Arch Wireless, which was the service provider, sent transcripts  of the text messages to the chief, and the chief determined that the officer who filed the suit, Quon, had sent numerous personal messages, including to his girlfriend, who was also an officer, and they were sexually explicit.  Both the city and the wireless provider were sued by Quon and other officers after they learned that their text messages were read by the chief.  The trial court dismissed their suit, but the 9th Circuit overturned the ruling, finding that the reading of the messages was an "unreasonable search" prohibited by the 4th Amendment, and that Arch Wireless violated the Electronic Communications Privacy Act of 1986 by providing the contents of the text messages to the city. 

Practice pointer.  The Supreme Court's decision in this matter will help define the parameters of employee's privacy in the workplace.  Even though this case involves a governmental agency, it ramifications will most likely impact the private workplace as well. 

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