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

Last week, Wal-Mart announced that it is going to pay approximately $640 million  to settle the majority of the 76 FLSA lawsuits pending against it the Wall Street Journal reported.  The allegations included forcing employees to work off the clock, prohibiting employees from taking breaks and changing time records.  Some commentators believe that the settlements may have an ulterior motive: to help prevent the unionization of Wal-Mart employees and to help Wal-Mart's fight against the Employee Free Choice Act.

Interestingly, last week, I received a letter from an Alabama law firm entitled "New Favorable Rulings Under FLSA".  The letter mentioned three particular types of claims under the FLSA, misclassification of employees as exempt when they are not,  classifying employees as independent contractors when they should be classified as employees, and forcing workers to work "off the clock".  The firm is interested in looking at cases involving these issues.  FLSA cases are alive and well in Alabama, and with more attorney's pursuing these cases, I anticipate the number of FLSA cases that are filed will continue to rise.

Practice Pointer.

As we enter 2009, now is a good time to review your classifications for FLSA purposes to make sure that your employees are properly classified, either as exempt or non-exempt.  It is also a good time to review with your managers and supervisors the importance of proper time keeping for non-exempt employees, and that they must be paid overtime if they work over 40 hours a week.

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The Seattle Business Journal recently reported that in a survey of companies in the United States and Great Britain, corporate counsel expected the number of lawsuits filed against their companies  to increase in 2009.  Fulbright and Jaworski's 5th annual Litigation Trends Survey shows that 34% of companies are anticipating increased litigation in 2009, as opposed to 22% who predicted increased litigation for 2008.  The report goes on to state that in-house counsel reported increases in wage and hour litigation and privacy claims. 

As we rapidly approach 2009,  the Americans With Disabilities Amendment Act of 2008, with an effective date of January 1, 2009, and the new FMLA Regulations, with an effective date of January 16, 2009, will, in my judgment, lead to an increase in litigation in these areas.  Now is the time for employers to educate their HR professionals, managers and supervisory staff so they can effectively deal with these changes.

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Danny Morton, the Sheriff of Blount County, Alabama, has agreed to resign effective January 15, 2009 due to allegations of sexual misconduct.   According to the Birmingham News, a female deputy sheriff, assigned to the drug task force, filed an EEOC charge on April 11, 2008 alleging that she was forced to drink alcohol while on duty, was fondled, kissed and sexually assualted.  At the time, Sheriff Morton denied the allegations of the complaint. 

A criminal investigation began, and a special proscecutor was appointed by the Attorney General's office.  An agreement was reached allowing Sheriff Morton to resign on January 15, 2009, and no criminal charges will be filed against him.  The article from the Birmingham News, dated December 16, 2008, is availble to read here.  There is no indication on how the EEOC charge is being handled at this time.

Practice Pointers.

1.  All employers must recognize that sexual harassment and other prohibited conduct can be engaged in at all levels: from the top, like a sheriff, to the bottom, of each organization.

2.  Employers should have a mechanism to report harassment, sexual or otherwise, to at least 2 people, in case their supervisor or CEO is the one accused of the wrongful conduct.

3.  Allegations of sexual harassment may give rise to a criminal investigaion and possibly charges for assault, rape, kidnapping or other crimes.

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As we head into the heart of the Holiday season, many companies will  host Holiday parties for their staff and/or customers. Unfortunately, these parties may lead to unforeseen consequences. On December 30, 2006, the Birmingham News published an article entitled "Driving Under the Influence Can be a Costly Mistake, Lawyers Warn". Although the article is almost 2 years old, the lessons to be learned are still worthy of review and still apply today. Here is the article:

12/30/06 Birmingham News (AL) 2

2006 WLNR 22804987

Birmingham News (AL)

Copyright 2006 Birmingham News. All Rights Reserved.

December 30, 2006

Volume 119

Section: LOCAL NEWS

Driving under the influence can be a costly mistake, lawyers warn

WALTER BRYANT News staff writer

If an officer arrests you for driving under the influence of alcohol, get out your checkbook. It could cost you $15,000 before it's all over.

Count on losing your driver license for at least 90 days. And your boss might take a dim view of your DUI, as well.

''I would feel very nervous about having more than a couple of drinks in a one-hour period,'' said Jim Sturdivant, an attorney with the Birmingham firm of Sirote & Permutt. His specialty includes DUI defense. He served as the city prosecutor for Vestavia Hills from 2000 until 2004.

Under Alabama law, a person is considered intoxicated with a blood-alcohol level of 0.08 percent. He said that can result from a single beer, a glass of wine or a mixed drink with at least 1.25 ounces of liquor.

Here's what happens if an officer determines you are driving while intoxicated:

Sturdivant said your license is taken, bail to get out of jail might be $2,000 and the fine and court costs could come to $1,000. Other expenses could include $150 towing fee for your car, $3,500 or more for an attorney to mount your defense and, in some cases, $3,000 or more for alcohol treatment.

Your insurance company likely will increase your yearly premium about $1,500. Some companies will drop your coverage entirely. Many cities will take your car to a storage lot and charge a daily fee.

But the direct costs are just the beginning.

Daniel J. Burnick, who is head of Sirote & Permutt's Labor and Employment Section, said employers take an increasingly dim view of alcohol related problems.

Tardiness and absenteeism cut productivity and co-workers can become resentful if they have to work harder to take up the slack caused by someone who is absent.

A lost license means you cannot legally drive a delivery or service truck. Employers could block use of a company car after a DUI because the company could be held liable in an accident. Without a license, renting a car is impossible.

Some professionals, such as physicians, nurses, pharmacists, attorneys and pilots, can lose their licenses to practice after a DUI.

Burnick said he counsels clients who have received a DUI to immediately report it to an employer. He said there may be penalties, but it's better to be honest with your boss immediately than for him to find out about your DUI on his own.

A DUI on your record could also keep you from getting a job or promotion, Sturdivant said, because some employers may view it as a symptom of a deeper personal problem.

Because of the immediate and long-term impact of the charge, he said, drivers should take the issue seriously.

''A DUI is a huge mistake,'' he said.

EMAIL: wbryant@bhamnews.com

---- INDEX REFERENCES ----

NEWS SUBJECT: (Crime (1CR87); Legal (1LE33); Social Issues (1SO05); Criminal Law (1CR79); Automobile Crime (1AU99))

Language: EN

OTHER INDEXING: (DUI; SIROTE PERMUTT) (Burnick; Count; Daniel J. Burnick; Jim Sturdivant; Sturdivant; Tardiness)

Word Count: 526

12/30/06 BRMINGHAMN 2

END OF DOCUMENT

Practice pointer.  Leaving a holiday party, or any company function, while under the influence can have a devastating impact on both the company and the employee. Don't do it!

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USERRA IN TODAY'S WORKPLACE

The Uniformed Services Employment and Reemployment Rights Act of 1994 applies to all public and private employers, regardless of the number of employees. Members of the uniformed services who are temporarily away from their jobs due to voluntary or involuntary service are covered (temporary employees are not covered). Returning service members are entitled to job protection and there is an escalator provision for pay and benefits.

A recent story by CBS's 60 Minutes demonstrates how returning service members can have their USERRA rights taken away. Joanne Merritt, a nurse and Army Reservist, was deployed for 2 years to care for wounded soldiers. Upon her return, she was advised that she had been away too long and she no longer had a job. Her employer: the VA Medical Center in Augusta, Ga.. After filing a complaint with the VA, her job was restored together with back pay and leave.

Practice Pointer.  There are numerous complaints and lawsuits being filed on a regular basis as the result of alleged violations of USERRA by servicemembers returning from duty. It can be costly to an employer to have one of these suits filed against it, not only financially, but also as to the time it takes to investigate and defend these suits.  The potential for negative publicity is something to be considered:  no employer wants to be mentioned in the local newspaper, TV station or in a 60 Minutes story in a negative manner.

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The IRS has set the new mileage rates for 2009.  The IRS website contains the following article:

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The Department of Labor published its Final Rule to implement the FMLA amendments on November 17, 2008.  The effective date of the amendments is January 16, 2009.  Section 585(a) of the National Defense Authorization Act for Fiscal year 2008 provided two new leave entitlements for Military Family Leave:

1.  Military Caregiver Leave.  Family members who qualify for FMLA are entitled to take up to 26 weeks of leave in a single 12 month period to care for a covered service member who has a serious illness or injury that was incurred in the line of duty while on active duty.  The definition of "Family Member" for Military Caregiver Leave goes beyond the FMLA definition to include spouse, parent (including step-parent and foster parent, but not in-laws), son, daughter and next of kin (up to first cousins).

2.  Qualifying Exigency Leave.  This leave is applicable to families of National Guard and Reserve members to help manage their affairs while on active duty.  Family members, otherwise qualified for FMLA leave, are entitled to up to 12 weeks of FMLA job protected leave for any qualifying exigency, which includes:

     a.  Short term deployment (leave up to 7 days)

     b.  Military events and related activites

     c.  Child care and school activities

     d.  Financial and legal arrangements

     e.  Counseling

     f.  Rest and recuperation (leave up to 5 days)

     g.  Post-deployment activities

     h.  Addtional activities (agreed upon by the employer and employee as to nature and duration)

Practice Pointers 

1.  As our servicemembers continue to be deployed, their qualifying family members are entitled to new types of leave.  HR and supervisors should be made aware of these changes and how they may impact their employees.

2.  The new leave also applies to certain post-deployment activities.  Again, HR and supervisors need to be made aware of these changes so that they can addrss these issues as they arise.

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