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

The Atlanta Journal Constitution reported today that a football recruit will not be attending the University of Georgia.  Chester Brown, a 6'5" 340 pound offensive lineman is the son of Samoan immigrants.  Although his mother insists that he was born in the United States, which would make him a citizen, it appears as if Brown is not able to provide documentation proving where he was born.  The Georgia Board of Regents adopted a policy in October, 2010 which states that an undocumented student cannot take the place of an "otherwise academically qualified Georgia resident who has been turned away because of capacity constraints".  This policy was adopted after a Kennesaw State student was arrested for a minor traffic incident, and it was discovered that she was an undocumented Georgia resident, but had been paying in-state tuition.  What would happen if this occurred in Alabama?

As I have written in the past, employers with state or other public entity contracts are required to use E-Verify.  I have spoken with a number of such employers, and they are being provided paperwork by the state, counties and cities that needs to be completed before the contract can be entered into, no matter how big or small the contract amount.  This paperwork includes "Affidavit of Alabama Immigration Law Compliance by a Contractor or Grantee" and an "Affidavit of Alabama Immigration Law Compliance by a Subcontractor or Grantee".  Some entities are requiring that the employer provide a copy of the Memorandum of Understanding concerning the use of E-Verify.

Social media update.  For those of you in north Alabama, I will be presenting a talk on February 29 on the impact of Social Media in the workplace.  The seminar, put on be Sterling Education Services, Inc. will be at the Marriott Huntsville.  For more information or to register for this seminar, visit the Sterling Website. 

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Cheryl Perich was a teacher at the Hosanna-Tabor Church school in Michigan.  She taught mostly secular subjects, but also taught one 45 minute religious class and attended chapel with her class.  She was "called" a teacher by the school, completed religious training and was a "commissioned minister" at the school.  She was diagnosed with narcolepsy, and threatened to file a lawsuit against the Church under the Americans With Disabilities Act.  She claimed that she was terminated in retaliation for threatening to file the lawsuit, while the school said she was terminated for insubordination and failure to follow internal dispute resolution procedures.  In a unanimous decision, the Supreme Court found a "ministerial exception" to employment discrimination laws, holding that the courts stay out of the way of the hiring and firing of clergy.  Chief Justice John Roberts wrote that "When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us...The church must be free to choose who will guide it on its way."  Justice Roberts further wrote that:  "The interest of society in the enforcement of employment discrimination statutes is undoubtedly important...But so, too, is the interest of religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission."  The Court found that the ministerial exception is not a jurisdictional bar to a lawsuit, but an affirmative defense.  The Court also made it clear that there was not a rigid formula for deciding which religious employees would qualify for the ministerial exception.  Future cases will be need to be decided by the courts based on the specific facts of each situation. 

Practice pointer.  This lawsuit was brought on behalf of Ms. Perich by the EEOC.  The Obama administration argued in support of Ms. Perich.  In rejecting the EEOC's arguments, Justice Roberts also wrote that reinstating Ms. Perich "would have plainly violated the church's freedom", and "would operate as a penalty on the church for terminating an unwanted minister:"  Justice Thomas wrote a concurring opinion, as did Justice Alito, who was joined by Justice Kagan.  A copy of the entire 39 page opinion can be found at the NYTimes. 

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Happy New Year to everyone.  2012 begins with more weird stuff in the employment world, which is actually pretty normal. 

Lady Gaga sued for overtime.  In New York, Lady Gaga has been sued by her ex-personal assistant for overtime.  Jenifer O'Neill sued Mermaid Touring, Inc, Lady Gaga's company, on December 14, 2011, seeking almost $380,000 in unpaid overtime for 4 weeks in 2009 and 52 weeks in 2010 and 2011.  The allegations in the suit are Ms. O'Neill was responsible for attending to Lady Gaga's needs "not only in her home, but also during her travels for her global concert tours, from city to city throughout the world, at locales, including stadiums, private jets, fine hotel suites, yachts, ferries, trains and tour buses. Plaintiff was always behind the scenes, and figuratively, if not literally, always at her side."  Her job duties included confirming Lady Gaga's schedule, reviewing and reconciling her credit card statements, "ordering meals and ensuring that they were correctly prepared and served at specific times; maintaining the principal's personal supplies, ensuring the availability of chosen outfits; ensuring the promptness of a towel following a shower; and serving as a personal alarm clock to keep [Lady Gaga] on schedule".  Ms. O'Neill is alleging that she was on call 24 hours a day, seven days a week:  she was responsible for "maintaining [Lady Gaga] on her desired schedule from the earliest waking hour, for being responsive to the slightest need throughout the day, and for addressing spontaneous, random matters in the middle of the night."    O'Neill was paid a salary of $75,000 per year.  This lawsuit sheds some light into the glamorous life of a pop star, and it will be interesting to see how it is resolved.

President Obama announces 3 recess appointments to NLRB.   On a more serious note, the NLRB issued a press release on January 4 announcing President Obama's intent to recess appoint Sharon Block(a democrat), Terence Flynn(a republican) and Richard Griffin(a democrat) to fill the 3 vacant seats on the NLRB.  Ms. Block worked for Senator Kennedy, was a senior attorney at the NLRB for a number of years, and currently serves as Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor.  Mr. Flynn is currently serving as Chief Counsel to NLRB Board Member Brian Hayes.  Mr. Griffin is General Counsel for the International Union of Operating Engineers.  Since 1983, he has served on the board of directors for the AFL-CIO Lawyers Coordinating Committee.

Practice pointer.  These appointments will give the Board it's 5 members, 3 democrats and 2 republicans.  Over the past year, the NLRB has been very active and, in my opinion, very pro-Labor.  I anticipate these recess appointments will be contested, but if they stand, the NLRB will continue to be active and pro-Labor.

Did ICE Mistakenly Deport a 14 year old runaway?  WFAA in Dallas broke a story this week about 14 year old Jakadrien, a 14 year old who ran away from her Dallas area home in the fall of 2010.  She ended up in Houston, where she was arrested by police for theft.  She provided the police a fake name, and when the name was run through the computer system, it was the name of a 22 year old illegal immigrant from Colombia, who had outstanding warrants for her arrest.  ICE was called in, and although she spoke no Spanish, she was deported to Colombia.  Upon her arrival in Colombia, she was provided a work card by the government and released.  U.S. authorities got involved, and asked the Colombian police to pick her up.  She is currently in a Colombian detention facility, and the Colombian government won't release her at this time. 

Practice pointer.  Although this story is just breaking and a lot of information is still sketchy, questions are being raised over how and why ICE deported a 14 year old U.S. citizen to Columbia.  You can read more about it at WFAA, NY Daily News, andUSA Today.

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The NLRB has pushed back the deadline from January 31, 2012 to April 30, 2012 the deadline to implement the required posting of the Notice of Employee Rights pursuant to the NLRA.  The delay came days after Judge Jackson, the District Court Judge assigned to the case in the D.C. Circuit, stated in oral argument that the case is a complicated one and asked the Board to delay the implementation because she needs more time to examine the issues involved.  A second lawsuit was filed in South Carolina, and argument is scheduled for January 11, 2012. 

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Yesterday, I published a blog entry advising that the State of Alabama had asked the 11th Circuit to stay oral arguments scheduled the last week of February/first week of March to in light of the U.S. Supreme Court agreeing to hear an appeal on Arizona's immigration law.  Today, the 11th Circuit announced that it would not stay the appeal pending a Supreme Court decision.  I anticipate the oral arguments will be held as scheduled, although the written decision may be delayed until after the Supreme Court hears oral arguments and/or issues a written decision on the Arizona law. 

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As we prepare to bring to an end 2011, I want to wish all of you a Merry Christmas, Happy Hanukkah, Happy Holidays, and a Happy and Healthy New Year.  2012 will continue to bring many changes in the employment arena, including the following:

Immigration Law: HB 56.  A reminder that any business that has contracts with the State of Alabama must begin using E-Verify effective January 1, 2012.  All employers are required to use E-Verify on or before April 1, 2012.  At this time, the 11th Circuit Court of Appeals has scheduled argument on the appeal of Judge Blackburns' orders enjoining parts of HB56.  In light of the Supreme Court's decision to accept an appeal of Arizona's law, Alabama has asked the 11th Circuit to stay the appeal, while the Plaintiffs, including the Department of Justice, have asked to go forward.  I will continue to post on my blog as the case winds it way through the courts. 

NLRB.  A reminder that the NLRB is requiring a new poster to be posted in the workplace effective January 31, 2012.  I summarized the poster requirements in a prior blog entry.

11th Circuit issues 2 new discrimination decisions.  In August, 2010, I posted an entry entitled "The Case that Never Ends".  Tyson was sued by Mr. Hithon, a black employee, alleging that the use of the word "boy" by his supervisor constituted racial harassment.  The court previously held in favor of Tyson.  Just last week, the 11th Circuit revisited this case, and reversed the prior decision, awarding Hithon $364,000.  Interestingly, as the Republican Presidential primary season officially starts, one of the issues being discussed is judicial activism.  The Atlanta Journal Constitution reports that the prior decision had been condemned by 11 civil rights pioneers, who had filed a brief with the court linking the use of the word "boy" to slavery.  The court found that the use of the word "boy" in and of itself was not discrimination, but the facts surrounding the use of the word "boy" in this case was sufficient to find in favor of Mr. Hithon. 

The 11th Circuit also issued a decision 2 weeks ago, in the case of Glenn v. Brumby, addressing harassment of an individual diagnosed with gender identity disorder.  Mr. Glenn was born a biological male, and subsequently diagnoses with gender identity disorder.  He/she began working for the Georgia General Assembly's Office in 2005 as a male, but in the fall of 2007 advised his/her supervisor that he/she was undergoing a gender transformation and would be coming to work as a female.  Glenn was subsequently discharged, and filed a claim alleging sex discrimination and discrimination based on her medical condition.  The trial court granted summary judgment in favor of the employee on the sex discrimination claim, and in favor of the employer on the medical condition claim.  On appeal, the 11th Circuit reversed the summary judgment in favor of the employer, and found that all persons, whether transgender or not, are protected from gender based discrimination by government agents, and that discriminating against someone on the basis of gender non-conformity constitutes sex based discrimination.  It should be noted that  the supervisor testified that "he fired Glenn because he considered it inappropriate for her to appear at work dressed as a woman and that he found it unsettling and unnatural that Glenn would appear wearing women's clothing."

Theft by Employees.  2 articles caught my attention today concerning theft by employees.  This continues to be a problem for all employers.  First, Al.com reports that Walter Skrobak, the former head security guard at the McCalla OfficeMax Powermax Facility,  pleaded guilty to stealing over $600,000 of computer software.  Between October 2008 and November 2010, he stole at least 1,600 units of computer software and sold them, via Pay Pal, to a party residing out of state for nearly $400,000. 

In New York, 3 employees stole almost $58,000 of lingerie from a Victoria's Secret Store.  An internal investigation reveals that the thefts occurred over the last 6 months.  Incredibly, one of those arrested stated that "My heart dropped when I saw that figure on the Internet...They exaggerated a lot, trust me.  They must have charged like full price for everything, and doubled the sales tax".  He admits that he only pocketed $800 during the 6 month crime spree. 

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This past Friday, the IRS announced the standard mileage rates for 2012.  They are as follows:

     55.5 cents per mile for business travel.

     23 cents per mile for medical or moving purposes.

     14 cents per mile in services for charitable organizations.

The business rate is unchanged from the 2011 mid year adjustment, while the medical and moving rate has been reduced by .5 cents per mile.  These rates are effective as of January 1, 2012. 

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The US Supreme Court announced today that it will hear arguments on Arizona's controversial Immigration Bill.  The 9th Circuit Court of Appeals had struck down several provisions of the law, including a provision that makes it a crime not to carry alien registration papers, the provisions that make it a crime for an illegal immigrant to solicit or apply for work, and the portion that requires a police officer to determine the immigration status of a person arrested if there is reasonable suspicion to believe that he or she is in the country illegally.  These provisions are similar to provisions in HB56, the Alabama Immigration Bill.  It is expected that oral arguments will be held in April, and a decision on the Arizona law should be issued by the end of June.  Although this appeal only applies to the injunction issued to stop the implementation of parts of Arizona's law, I anticipate that the Supreme Court's decision will provide guidance to Alabama, and other states, that have enacted immigration laws over the last several years. 

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The National Labor Relations Board currently consists of 3 members: 2 Democrats and 1 Republican. At the present time, 2 seats are vacant.  The Republican member has threatened to resign so that there would not be a legal quorum, but has not done so.  This past June, the NLRB published proposed amendments, which would make it quicker and easier for unions to organize in the workplace.  On November 30, the NLRB, on a 2-1 vote along party lines, approved a Resolution to proceed with the new rules.  The Resolution is not the law, but is a summary of what will soon be published as the Final Rules.  In light of the fact that the Republican member's term expires on December 31, causing the NLRB to lose the ability to have a quorum, I anticipate that their will be a hard push to publish the Final Rules before year end.  The changes that will speed up the union election process are:

     Pre-election hearings can be limited by the hearing officer to whether a question of representation exists.  With limited exceptions, this means that disputes concerning voter eligibility would be determined after the election.

     The hearing officer will have to give express permission for parties to file post-hearing briefs.

     The right to seek review of any rulings made concerning the appropriate bargaining unit and related items will not be allowed until after the election has taken place and the ballots counted.

     The current regulations which provide a minimum of 25 days from the time the regional director directs an election to the time of the election itself, will be rescinded.  This time period provided an opportunity for the NLRB to rule on a request for review if filed.

     Permission to directly appeal to the NLRB will require a showing of "extraordinary circumstances".

     The NLRB's review of a regional director's or judge's resolution of post-election disputes will be discretionary after both stipulated and directed elections. 

The NLRB has posted an Explanation of Resolution on it's website. 

Practice pointers.  With private sector union membership at an historically low rate of 6.9%, labor organizations are pushing these changes to speed up the election process to deny employers the opportunity to educate their workforce as to the pros and cons of unionization. For employers, now is the time to determine if there is any discontent in the workplace, and if so, try to address the issues.  If approved, which I think they will be, unions will once again begin campaigning to unionize as many workplaces as possible.   With the Republican member dropping off the Board as of December 31,the NLRB will not have enough members to obtain a quorum, and  the Democratic majority expects to vote before year end. 

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