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

Now that President Obama has signed his first law into place, the Lilly Ledbetter Fair Pay Act, Congress will continue to move forward with other employment related bills.  The Employee Free Choice Act (EFCA) is high on the agenda.  The EFCA, as proposed, will allow the workplace to  be unionized based on signed cards, and not through secret ballot elections.  Once the union organizers obtain 50% of the work forces' signatures, that will be sufficient to unionize that workplace. 

Perhaps more importantly, the EFCA contains a mandatory contract requirement.  At the present time, approximately 30% of newly elected unions are not successful in signing a contract. The EFCA provides that if a contract cannot be negotiated between the union and the employer, the first contract will be set by federal arbitrators.

Just this week, the Bureau of Labor Statistics reported that union membership rose by 428,000 members, or 12.4%, in 2008.  This is the biggest gain since the government began compiling such statistics.  This is the second year in a row that union membership has risen: in 2007, unions added 311,000 new members, or 12.1%.  With the economy where it is right now, unions have a compelling argument that they are an important part of job security, and I anticipate union membership will rise in 2009, with or without the passage of the EFCA.

Another unintended consequence of unionization was highlighted in the recent Supreme Court decision of Locke v. Karass (US Supreme Court 1/21/09).  In Locke, the Court held that the First Amendment permits a local union to charge nonmember employees represented by the union for national litigation expenses as long as the subject matter of the litigation is of a kind that would be chargeable if the litigation were local, and the charge is reciprocal in nature, i.e. that the contributing local would reasonably expect other locals to contribute in a similar manner.

Practice Pointers.  With the increase in union membership, and the possible passage of the EFCA, employers should be proactive in communicating with the workforce.  Emphasize the company's' strengths.  Review the history of the company with employees.  If there are any weaknesses (lower pay, benefits, etc.), work on resolving these issues through compromise.  Educate management and employees about how unions really work, and dispel any myths.  Train supervisors to be on the lookout for signs of potential unionization, and report it to upper management immediately. 

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The Lilly Ledbetter Fair Pay Act of 2009, the passage of which was one of President Obama's main priorities, appears  ready to be signed into law.  President Obama is scheduled to sign the Act tomorrow morning, January 29, 2009.  The Act, which will amend Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act, will re-start the applicable statue of limitations each time a pay check or other benefits are paid for claims involving discrimination on compensation.  The law overturns the 2007 Supreme Court decision in Ledbetter v. Goodyear, arising out of Alabama.  In my opinion, the most important language of the Act is as follows:

"For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice."

The act purports to apply retroactively as set forth by Congress:  "This Act, and the amendments made by this Act, take effect as if enacted on May 28, 2007 and apply to all claims of discrimination in compensation...that are pending on or after that date."

Lily Ledbetter, who campaigned for President Obama, is quoted in the Birmingham News as follows:   "I will be treated like a second-class citizen by that corporation for the rest of my life," she said, noting that her retirement benefits reflect her lower pay. "But I have the satisfaction of getting this law changed back so that other people can still file."

Practice Pointer.  Now is the time for employers to review their pay polices and pay structure to make sure that there is no discrimination in pay under Title VII, ADEA, ADA and the Rehabilitation Act.  Employers should consider reviewing their pay practices from May 28, 2007, the effective date of this new law, forward.

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After a relatively quiet 2008 session on employment related issues, the United States Supreme Court issued it's second employment related decision in the past 2 weeks.  Today, in Crawford v. Metropolitan Govt of Nashville, the Supreme Court decided that an employee, who responded to questions during an internal investigation is protected under the anti-retaliation provisions of Title VII.  Crawford, a 30 year employee, was questioned by a Metro Government HR manager during an internal investigation concerning rumors of sexual harassment by Mr. Hughes, the school district's employee relations director.  She responded that Hughes had sexually harassed her.  Crawford was terminated shortly thereafter for embezzlement.  She filed her suit under Title VII, alleging that she was retaliated against for reporting Hughes' behavior during the investigation.  Hughes was not disciplined at all.  The court found that the anti-retaliation provision of Title VII extends protection to an employee who speaks out about discrimination not on her own initiative, but in response to questions asked during an internal investigation.  The Court found her response was covered under the "opposition" clause as a disapproving account of Hughes' sexually obnoxious behavior toward her. 

Practice Pointer.  During the course of an investigation, it is imperative that the employer learn of what happened as quickly as possible.  Witnesses, in answering questions during an investigation, are protected by the anti-retaliation provisions of Title VII.  Before any adverse action is taken against a witness in an investigation, it is important to confer with HR and/or legal counsel to make sure that the action is not retaliatory. 

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Since the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) was signed into law on September 28, 2008 by President Bush, many plaintiff's attorneys have attempted to argue that the  changes should apply retroactively to cases already pending in court.  Since the ADAAA made significant and substantial changes to existing law as developed by the Supreme Court, plaintiff's have argued that the employee friendly changes should apply to their cases that covered conduct allegedly in violation of the ADA, that occurred prior to January 1, 2009, the effective date of the ADAAA.

The Fifth Circuit Court of Appeals, in EEOC v. Agro Distrib. LLC, (5th Cir., No. 07-60447, 1/15/09) held that the ADAAA should not be retroactively applied.  Two of my partners, Kyle Smith and David Mellon, tried an ADA case last week in the U.S. District Court for the Middle District of Alabama, in Montgomery, before Judge Fuller.  Plaintiff's counsel argued that the ADAAA should apply retroactively to conduct that occurred several years ago.  Judge Fuller ruled consistently with the Fifth Circuit, finding that the ADA, not the ADAAA, was the correct law to use in deciding this case.  The jury returned a defense verdict in that case.

I anticipate that as more courts rule on this issue, they will be consistent with the findings of the Fifth Circuit and Judge Fuller.

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Beginning today, January 16, 2009, the Department of Labor's regulations concerning the FMLA are now in effect.  Based on my review of the final regulations, I believe that the following 3 components of the FMLA will have the most impact on employers.

1.  Military caregiver leave and qualifying exigency leave.  Eligible employees who are family members of covered servicemembers are now able to take up to 26 work weeks of leave in a single 12 month period to care for a covered servicemember with a serious illness or injury suffered in the line of duty while on actiive duty.  For a more detailed discussion of this change, please see my blog entry of December 4, 2008.

2.  Employer notice obligations and new forms.  Employers are now required to give employees general notice of the FMLA, through a poster and either an employee handbook or upon hire, an eligibility notice, notice of rights and responsibilities, and a designation notice.  There are new forms published by DOL  and available on the  DOL website.

3.  Adoption of the Ragsdale decision.  The United States Supreme Court decided the case of Ragsdale v. Wolverine World Wide Inc, which found that an employer does not need to provide additional FMLA leave as a penalty for failure to appropriately designate FMLA leave.  The final rule, although removing the prior categorical penalty provisions, does find that when an employee suffers individualized harm due to the failure to properly follow the notification rules, the employer may be liable.

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In 2007, the United States Supreme Court issued it's decision in Ledbetter v. Goodyear,  a case arising out of a dispute in Alabama.  The Supreme Court, addressing claims under Title VII and the Equal Pay Act, narrowly interpreted the applicable statute of limitations, finding that each pay check was not sufficient to be an act of discrimination, and that the 180 day time period to file a charge with the EEOC began when Ledbetter's pay was set.  Yesterday, the New York Times reported that President-Elect Obama and Congress intend to quickly overturn the Ledbetter decision through legislation.  Obama had previously co-sponsored a bill in the Senate to do so, and Ms. Ledbetter, who spoke at the Democratic National Convention, reported that Obama would see her in the White House when he signs the bill into law.  The New York Times article quotes R. Bruce Josten, executive vice president of the United States Chamber of Commerce, as saying that any such legislation  "would lead to an explosion of litigation".

Practice pointer.  With our new President set to take office in two weeks, and with the makeup of our new Congress, I anticipate that there will be many attempts to change or amend various laws in the employment arena.  I will continue to report on any changes as they occur. 

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