RECENT COURT DECISIONS
Over the last several weeks, both the Alabama Court of Civil Appeals and the 11th Circuit Court of Appeals have issued a number of cases that impact the employment arena. In my opinion, the most important ones are the following:
1. Duran v. Goff Group: Silva was working in Alabama for Jarman Construction when he died as the result of an on the job accident in 2003. He was survived by a wife and two minor children, both of whom resided in Mexico at the time of his death. The workers' compensation carrier, Goff Group, filed for a declaratory judgment that death benefits were not payable to Silva's dependents because they were nonresident aliens. The Court of Civil Appeals found that since the dependents were neither citizens nor resident aliens in the United States, they were not afforded Constitutional guaranties to equal protection and due process. The Court further found that the rights of dependents are separate and distinct from the rights of the deceased employee rather than derivative of the employee's rights. As such, the non-resident alien dependents were not entitled to death benefits under Alabama's workers' compensation statute.
2. Allmond v. Akal Security Inc.: Allmond applied for a job with Akal Security Inc. which, among other things, provided security officers at federal courthouses under contract with the U.S. Marshals Service. Allmond was employed as a security officer in Columbus, Georgia. One of the prerequisites of holding this job was to pass a hearing test, without the use of a hearing aid since the security officers must "be able to clearly understand directions in time of crisis....must be able to hear communication at a level of sound that does not inform persons causing an incident of the [officers'] response plans...[and] must be able to discern the direction of a disturbance or detect an approaching threat". The hearing aid ban ensures that the officers can perform their job duties in the event the hearing aid fails or becomes dislodged. Allmond failed the hearing test, and filed his lawsuit under the ADA and Rehabilitation Act. The 11th Circuit, upholding the trial court's granting of summary judgment against Allmond, found that the hearing aid ban was job related and was consistent with a business necessity. "When considered in the light of the tremendous harm that could result if a security officer could not perform the essential hearing functions of his job at a given moment, we accept this justification as legitimate and wholly consistent with business necessity".
3. Gregory v. First Title of America Inc.: Gregory worked as marketing representative for First Title, a title insurance company. After she left her employment, she sued for overtime pay under the FLSA, seeking $10,000 in unpaid overtime compensation. Her allegations included the fact that she never consummated a sale, that she was employed only to promote the company's services and to stimulate sales. At her deposition, she testified that she did in fact obtain orders for title insurance and was paid a commission on her successful sales. The 11th Circuit found that she was exempt under the FLSA as an oustside sales employee: she was customarily and regularly performing her duties away from her employer's place of business, free from direct supervision, that her primary duty was to obtain orders for title insurance, and her income was directed related to the number of orders she brought in or obtained.
Seminar Update. Due to an overwhelming response, my firm, Sirote & Permutt will conduct a second seminar addressing actual and anticipated changes in employment law on March 11, 2009 at Vulcan Park in Birmingham. If you are interested in attending please contact ewilbourne@sirote.com or call 205.930.5494 to RSVP.
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