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

Gun Law Update.  Over the past two days, I have posted about the sweeping gun reform law approved by the Alabama Legislature.  According to Al.com, Governor Bentley signed the Bill into law today.  It will become effective on August 1, 2013. 

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Yesterday, I posted an entry about Alabama's new gun legislation, approved by the Legislature, and awaiting Governor Bentley's signature.  Here is a more detailed look at the legislation.

On Monday, May 20, 2013, the Alabama House overwhelmingly passed Conference Committee Substitute for SB286, a law reforming gun laws in Alabama.  This is a wide reaching law, and will become effective IF Governor Bentley signs it.  Due to the wide spread implications and controversial nature of this bill, this summary of the Bill is being published.  In the event Governor Bentley does not sign the Bill, we will update you at the appropriate time.  SB286 is lengthy, 36 pages, and makes some major revisions to numerous currently existing Alabama laws.  You can read SB286 in its entirety here.

Summary of Conference Committee Substitute for SB286

Section 2.  This section amends existing criminal statutes, including the following:

1.        13A-11-7, Disorderly Conduct by adding “(c) It shall be a rebuttable presumption that the mere carrying of a visible pistol, holstered or secured, in a public place, in and of itself, is not a violation of this section.

2.       13A-11-52, prohibiting the carrying of a pistol on private property without the owner’s consent, unless the person possesses a valid concealed weapon permit (CWP).

3.       A person legally permitted to possess a pistol, but who does not have a CWP, may possess an unloaded pistol in his/her motor vehicle if it is locked in a compartment or container and out of reach of the driver and any passenger.

4.       Sheriff’s SHALL issue, within 30 days of receipt of a completed application and fee, a CWP in 1 to 5 year increments.  The Sheriff can refuse to issue a CWP if the person is prohibited from possession of a pistol or firearm pursuant to state or federal law, has a reasonable suspicion that the person may illegally use the weapon, and can consider prior mental health, falsification of any portion of the permit application, or caused justifiable concern for public safety. If denied, the Sheriff SHALL issue a written statement setting forth the reason for denial and the applicant has an opportunity to appeal to the District Court. 

5.       “A person who is unlawfully present in this state may not be issued a permit under this section.”

6.       Any identifying information for those who were issued a CWP shall be kept confidential, and not available to the public.

7.       A person licensed to carry a handgun in any state is authorized to carry a handgun in Alabama.

Section 3.  This section provides for the payment of a license tax, in the amount of $150 in cities and towns over 35,000 people, and $100 in all other places, for gun shows. If the organizer pays the tax, each dealer at the show does not need to pay any additional tax if they are already licensed under the tax laws.

Section 4.  This controversial section deals with guns in the workplace and parking lots.

1.        Employers MAY restrict or prohibit employees, including those with a CWP, from carrying firearms while on the employer’s property or while engaged in the duties of the person’s employment.

2.       Public and Private employers MAY NOT restrict the transportation or storage of a lawfully possessed firearm or ammunition in an employee’s privately owned motor vehicle while parked or operated in public or private parking area if (a) the employee has a CWP, (b)the weapon is legal for use for hunting and the employee possesses a valid Alabama hunting license, the weapon is unloaded at all times, and is during a season in which hunting is permitted by Alabama law, (c) the employee has not been convicted of a crime of violence, (d) the employee has no documented prior workplace incidents involving the threat of physical injury or which resulted in physical injury, (e) if the vehicle is attended by the employee, kept from ordinary observation within the vehicle, (f) if the vehicle is not attended, the firearm is kept from ordinary observation and locked within a compartment or container. 

3.       If the employer believes that an employee presents a risk of harm to himself or others, the employer may inquire as to whether the employee possesses a firearm in his vehicle. If the answer is yes, the employer may inquire to make sure it is locked in a compartment or container.  If not, the employee is subject to adverse employment action.  If the employee is in compliance, no adverse action can be taken.

4.       Employers are permitted to report to law enforcement a complaint if the employer has information or belief that there is credible evidence that the firearm is prohibited by state or federal law, or a threat made by an employee to cause bodily harm to themselves or others.

5.       If law enforcement officers pursuant to a valid search warrant discover a prohibited firearm, the employer may take adverse action against the employee.

6.       If the employee is in full compliance with this law, or does not possess a firearm prohibited by state or federal law, the employee can recover against the employer compensation for lost wages and benefits, and compensation “for other lost remuneration caused by the termination, demotion, or other adverse action.”

7.       Except as set forth in the preceding paragraph 6, an employer “SHALL be absolutely immune from any claim, cause of action or lawsuit that may be brought…as a result of any firearm brought onto the property of the employer…” and “the presence of a firearm…on an employer’s property under [this Act] does not, by itself, constitute the failure by the employee to provide a safe workplace.”

Section 6.  This section sets forth areas where a person may not possess or carry a firearm, without express permission.  These areas include law enforcement buildings, jails, facilities which provide inpatient or custodial care of those with psychiatric, mental or emotional disorders, court houses, inside any facility hosting athletic events not related to firearms sponsored by any private or public school, either elementary, secondary or postsecondary UNLESS the person has a CWP. This also applies to any professional athletic event not related to firearms.  The person or entity responsible for the premises shall post a notice alerting those entering that firearms are prohibited.

Section 7. 

1.       This Act specifically preempts the entire field of regulation in Alabama dealing in any way with firearms, ammunition, or firearm accessories “to the complete exclusion of any order, ordinance, or other rule promulgated or enforced by any political subdivision of this state.”

2.       An employer is NOT prevented from “regulating or prohibiting an employee’s carrying or possession of firearms, firearm accessories, or ammunition during and in the course of the employee’s official duties.”

Section 8.  This section amends Alabama Code 13A-3-23, dealing with self-defense.

1.        A person may use deadly force in self-defense if that person reasonably believes that another person is using or about to use deadly physical force, is using or about to use deadly physical force against the occupant of a dwelling in commission of a burglary, to thwart a kidnapping, assault burglary, robbery, forcible rape or forcible sodomy.

2.       This act added the following language permitting the use of deadly force if someone is “using or about to use physical force against an owner, employee, or other person authorized to be on business property when the business is closed to the public…”

3.       Deadly force is permitted if a person is in the process of unlawfully and forcefully entering, or has unlawfully and forcefully entered a dwelling, resident, business property, or occupied vehicle…”

Should the Governor sign the bill in May, it will become effective on August 1, 2013. 

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Al.com is reporting that the Alabama Legislature has passed a sweeping gun control bill that was approved by a conference committee. Subject to approval by Governor Bentley, the new law will allow legal owners of guns to possess them in company parking lots.   This law prohibits employers from barring unloaded guns from personal vehicles if the owner has a valid concealed carry permit, or if it is during hunting season and the owner has a valid hunting license.  The employee must not have a prior documented incident of workplace violence, The gun may not be visible from outside the car.  The car must be locked or the gun must be kept in a locked area (glove compartment, trunk, etc.).  If the employer thinks that the person may present a risk of harm to himself or others, the employer may inquire into whether the employee has a gun in his vehicle. If the employee complies with the requirements of the law, disciplinary action cannot be taken. 

If an employee is wrongfully disciplined, an action can be brought seeking damages for lost wages and benefits, or re-numeration caused by the termination, demotion or other adverse action. 

The employer, under most circumstances, is absolutely immune from any lawsuit or other claim for damages as the result of any damage caused by a firearm on company property pursuant to this law.

Practice pointer.  Assuming this law is not vetoed by Governor Bentley, it will become effective on the first day of the third month after becoming law.  The entire law can be read on Al.com.  It is long and complicated.  Before implementing any new polices and procedures, or taking disciplinary action after the law becomes effective, employers should consult with their legal counsel. 

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USA TODAY reported that the life of a 16 year old New Jersey girl was saved as the result of a concerned woman in California. Jackie Rosas was following the blog of the NJ teenager for about a year, and noticed that her posts were often about depression.  Rosas saw a number of hurtful messages being sent to her through Tumblr.  On May 6, the 16 year old blogged that she was going to commit suicide.  Rosas called a local suicide hot line, who told her to call the police.  The police put her in touch with Officer Heather Olsen,a school resource officer at a local high school, but she did not recognize the girl's name. Olsen talked to the school's assistant principal, Karen Dimick.  Although they knew the girls name, they did not know where she lived.  Olsen and Dimick began researching the girls twitter account, and found a tweet from November where she said ow much she loved the USH marching band.  They found Union Township High School in New Jersey, and contacted the police in Union Township.  Lt. John Daubner of the Union Township police department confirmed that they sent officers to the girl's address, found her, and determined that she had taken enough pills to put her on a psychiatric hold. 

Practice pointer.  Although I often blog about the negative consequences of social media, this is a story of how one person can make a difference by using social media, and knowing what to do with the information.  Ms. Rosas is a hero for saving the life of a young girl over 3,000 miles away that she did not even know. 

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 Last month, I posted that a District Court Judge in South Carolina found the NLRB's new poster requirement to be unlawful, but did not ban the NLRB from requiring that it be posted.  A I also posted that the DC Circuit Court of Appeals entered an injunction prohibiting the NLRB from requiring the use of the poster.  On May 7, 2013, the DC Circuit Court of Appeals issued an opinion finding that the poster requirement is illegal.  In a 38 page opinion, the Court wrote that:  

The Court concluded that:   

 Pending an appeal, it is my opinion that the poster, as previously required by the NLRB, does not have to be posted at this time. 

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Mandatory Use of New I-9 Form.  Beginning May 7, 2013, the use of the new Employment Eligibility Verification Form I-9 will be mandatory for all employers in the United States.  This form, and instructions, can be found at USCIS.  The USCIS has also published an updated Handbook for Employers, Guidance for Completing Form I-9.  Please note that the Spanish I-9 form can only be completed in Puerto Rico.  It can be used for reference purposes only in the 50 states and US territories. The Handbook states that "Employers must have a completed Form I-9 on file for each person on their payroll who is required to complete the form. Form I-9 must be retained and stored by the employer either for three years after the date of hire or for one year after employment is terminated, whichever is later. The form must be available for inspection by authorized U.S. Government officials from the Department of Homeland Security, Department of Labor, or Department of Justice."

EEOC Record Verdict.  In Davenport, Iowa, a jury returned a verdict in favor of the EEOC and against Hill County Farms, dba Henry's Turkey Service, in the amount of $240 Million as the result of long term abuse of workers with intellectual disabilities.  The jury found that 32 men with intellectual disabilities were subjected to severe abuse and discrimination between 2007 and 2009.  Each man was awarded $5.5 million in compensatory damages, and $2 million in punitive damages.  The court had previously awarded each man $1.3 million for unlawful wage discrimination.  This award resulted from the Court finding that the monthly pay of $65 was discriminatory, and they should have been paid between $11 & $12/an hour.  The EEOC presented evidence that the owners and staffers of Henry's Turkey "subjected the workers to abusive verbal and physical harassment; restricted their freedom of movement; and imposed other harsh terms and condition of employment such as requiring them to live in deplorable and sub-standard living conditions, and failing to provide adequate medical care when needed....Verbal abuses included frequently referring to the workers as "retarded," "dumb ass" and "stupid."  Class members reported acts of physical abuse including hitting, kicking, at least one case of handcuffing, and forcing the disabled workers to carry heavy weights as punishment". 

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Yesterday, I posted about two New York firms being sued for sexual harassment.  Today, I am posting about a Washington, D.C. firm being sued for pregnancy discrimination.  On April 22, 2013, Demetria Peart filed her lawsuit against Latham & Watkins in federal court in Washington.  Peart alleges that she was hired by Latham in April, 2007 as a legal secretary.  She found out she was pregnant in October, 2007, and notified her supervisor that she was working through her sickness related to the pregnancy.  In November, her physician placed her on bed rest.  She immediately notified her supervisor, and both she and her husband corresponded with her supervisor, the benefits coordinator, and the four attorneys she supported.  Her short term disability was approved, and the attorneys she supported assured her that her duties were being taken care of by supporting secretarial floaters and co-secretaries.  Peart provided the required medical verification forms to Latham's medical insurance carrier as required.  Peart alleges that on January 24, 2008, the HR manager called her and advised her that he was terminating her employment because "she was no longer needed" and "her pregnancy complications were not his problem".  Peart reached to others at the office, and was advised that the HR manager told other personnel that she was terminated because of "damn thirteen weeks of morning sickness" and her pregnancy complications were "not [their] concern."  When contacted by the Legal Times, a spokesperson for Latham "declined to comment".  A copy of her complaint can be read here. 

Practice pointer.  Please keep in mind that this lawsuit was just filed and these are merely allegations made by Ms. Peart.  However, the lawsuit has resulted in bad publicity against a well known, well respected international law firm.  If the allegations are true, it demonstrates a lack of understanding of the law by the HR manager, which may result in a monetary settlement or verdict, as well as attorney's fees.  Also, at least four attorneys will be deposed, which takes time away from their day to day activities and creates an unnecessary distraction in the workplace. 

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Sexual harassment can happen in any workplace, with any profession, including lawyers.  Recently, there have been two law firms/attorneys sued for sexual harassment by employees.  Both arose in New York. 

Sabrina Rafi, who is 27, worked as a paralegal for James R. Ray, 50, whose office is located on Park Avenue.  The New York Post reports that Rafi filed a lawsuit alleging that Ray asked her to be his third wife in a polygamous relationship, forced her to feed him with chopsticks at a Korean restaurant, bragged about having sex with several partners and being married to multiple women, and talked about lesbian pornography with her.  Rafi claims that she wore several layers of clothes in an attempt to thwart his sexual advances, but that only irked Ray.  She said that she felt sick working for him.  Ray ultimately fired Rafi in February, after she joined the firm in December.  She filed the lawsuit shortly after she was terminated.

In March, Alexandra Marchuk, a junior lawyer at the New York firm of Faruqi & Faruqi, filed a sexual harassment suit against the firm and a partner, Juan Monteverde.  The lawsuit alleges that Monteverdi made numerous improper comments and unwanted sexual advances toward her, and he forcibly had sex with her in the office on one occasion.  In response to the lawsuit, Monteverde and the firm filed counterclaims against Marchuk, alleging defamation and damage to their reputation.  The New York Times reports that after they appeared at a court hearing in Delaware, where Monteverde asked Marchuk to "dress alluringly", they went to a local bar and engaged in kissing and fondling.  She alleges it was not consensual, he says it was.  She claims that after the firm's Christmas party in 2011, they went to a bar and were kissing and fondling each other, and that they went to the offices where he "quickly and forcefully had sex with her".  He alleges that the sexual contact fell short of intercourse, and was consensual.  Monteverde's counterclaim alleges that when the suit was filed, she sent it to the media, Faruqi clients and Mr. Monteverde's wife. 

Practice pointers.   Bad publicity is something that no employer wants, especially when it is as sensational as these two stories.  When a senior level employee/partner, such as Mr. Monteverde, who is married, admits to kissing, fondling and having sexual contact with a subordinate, it will be difficult for anything good to happen.  And there will be attorneys fees, expenses, time away from work, marital issues, and the stress of litigation.  Train all employees, including owners and senior level management, as the dangers and ramifications of sexual harassment. 

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Over the past week, the EEOC announced settlements in 3 separate cases.  These cases involved racial harassment, pregnancy discrimination, and disability discrimination.  They also announced that a defendant that settled a case was held in contempt of court for not complying with the order signed by the court.

Racial Harassment. Utah construction company, Holmes & Holmes Industrial, Inc. agreed to pay 3 employees a total of $230,000, the maximum allowed by law, as well as several affirmative steps to prevent and address race-based conduct on the work site.  In September, 2010, the EEOC filed its suit against Holmes, alleging racial harassment and retaliation.  The court, in a ruling issued last year, found that 3 workers were subjected to an objectively hostile work environment based on race. The court observed that the site superintendent, Paul E. Facer, referred to the African-American employees as "n----rs" or a variation of that word almost every time he spoke to them. Other Holmes employees used the term "n----r-rigging" while working there, and racist graffiti was evident both inside and outside portable toilets on the work site. Finally, the EEOC alleged that  Holmes fired one of the harassment victims for complaining about it.  Holmes also agreed to implement a comprehensive training program on discrimination, discussions of harassment in work site meetings on a monthly basis, and a review and revision of the policies and procedures concerning protected-class discrimination and retaliation. 

Pregnancy Discrimination.  In Las Vegas, where things that happen in Vegas don't always stay in Vegas, a female employee at Engineering Documentation Systems, Inc., became pregnant.  Upon learning of her pregnancy, a management official allegedly made derogatory remarks about her condition and denied her request to move her office closer to the restroom to accommodate her severe nausea and vomiting.  When she was absent due to her pregnancy leave, her job description was changed, adding the requirement that she be certified to carry live ammunition and explosives.  EDSI failed to engage in the interactive process or to accommodate her, and terminated her while she was on a leave of absence.  Her husband, who also worked for EDSI, was demoted and eventually terminated after complaining about his wife's treatment and participating in the EEOC investigation.  EDSI agreed to pay her and her husband a total of $70,000, and entered into a 4 year consent decree. 

Disability Discrimination.  In Minneapolis, Applied Vacuum Technology will pay $50,000 to settle a disability discrimination lawsuit filed by the EEOC.  Larry Kating, an employee of AVT, was fired after he sought to return to work after being hospitalized for a week.  AVT knew about the hospitalization, but fired him for failing to call in every day during the hospitalization.  The EEOC alleged that AVT regarded him as having a disability.  In addition to the $50,000 paid to Kating, AVT agreed to a consent decree covering 5 years.  AVT must train employees as to workplace policies and to laws against discrimination, with the training session being introduced by AVT's president or chief executive officer.

Practice pointers.  Having successfully litigated against the EEOC several years ago in a lawsuit alleging pregnancy discrimination, I can personally attest to damage done to a company that is involved in an EEOC lawsuit.  The time, expense, bad publicity and stress are all great.  Although lawsuits cannot always be avoided, it is better for companies to have up to date policies and procedures, and proper programs for educating and training all employees, from top to bottom, on them. 

Dairy Queen Franchisee Held in Contempt.  YS&J Enterprises, a Dairy Queen franchisee in North Carolina, entered into a settlement agreement with the EEOC after the EEOC initiated a lawsuit alleging that the company subjected Chastity Hill-Cox, an 18 year old employee, to a sexually hostile work environment.  The settlement was approved in October, 2012 and required YS&J to pay Hill-Cox $17,500.  Further remedial relief was approved, including an injunction against YS&Y from further subjecting employees to discrimination based on their sex or from retaliating against employees for opposing such discrimination.  YS&J was also required to redistribute its sexual harassment and retaliation policy to managers and supervisors, and conduct anti-discrimination training for managers and supervisors.  YS&J failed to meet any of the terms of the settlement agreement, including failing to pay $17,500 to Hill-Cox.  In January 2013, the EEOC filed a motion to require YS&J to show cause why it should not be held in contempt:  After a hearing on the matter, the court entered an order on April 10 holding YS&J in civil contempt, and required the company to immediately comply with all the terms and conditions of the decree.  The court also imposed a fine of $1,000 a day until the decree was fully complied with.

Practice pointer.  When an agreement is entered into by the parties, and a court order is signed, all parties must comply with the order.  Failure to do so can result in fines, and, on rare occasions, incarceration. 

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