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

The National Council of EEOC Locals, the union representing EEOC employees, filed a grievance against the EEOC in 2006 regarding overtime disputes that dated back to 2003.  This week, an arbitrator found that the EEOC's practice of not paying overtime, and paying compensatory time instead, was a willful violation of the FLSA.  Steve Vogel, with the Washington Post, reports that the EEOC, which is "responsible for ensuring that the nation's workers are treated fairly, has itself willfully violated the Fair labor Standard Act on a nationwide basis with its own employees..."  The arbitrator's ruling held that the EEOC, which offered compensatory time off instead of paying for overtime, was "forced volunteering" and "demonstrates action that went beyond mere negligence."  The arbitrator further found that the EEOC pressured it's employees to work extra hours, but did not offer extra pay.  According to an attorney for the union, "The unfortunate reality is that EEOC continues its deplorable overtime violations to this day". 

As I anticipate that the case load for the EEOC will continue to rise from previous years (it was up over 15% from 2007 to 2008),  this ruling will extend the time it takes the EEOC to investigate charges filed by workers.  This will delay the resolution of many cases already filed as well as those that will be filed in the near future.

Practice Pointer.  The use of compensatory time in lieu of overtime, with a few exceptions, is prohibited by the FLSA.  For example, employers cannot require workers to work 60 hours one week, and then 20 the next, and not pay overtime for the 20 extra hours worked during the first week.  As a general rule, if a non-exempt worker works more than 40 hours in a week, overtime should be paid for the extra hours. 

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Over the past several weeks, there have been a large number of Title III ADA public accommodation lawsuits filed around Alabama in federal court.  These lawsuits, filed by the same law firm, use the same plaintiffs, who are disabled and often in wheelchairs, to visit various places of public accommodation and allege that they are denied full, safe and equal access to the properties due to their lack of compliance with the ADA.  The plaintiffs are trained to spot violations of the ADA, including such things as improper signage for handicapped parking, the slope/grade of handicapped ramps, the size of entrance doors, the pressure needed to open doors, the width of bathroom doors and stalls, and various other violations.  The way these suits usually proceed is that a lawsuit is filed, and then a meeting is requested to inspect the premises by the plaintiff's attorney and his architectural expert.  If the owner of the property is willing to correct the deficiencies, and pay for the expert and attorney's fees, the case will be dismissed upon reaching agreement as to these issues.  If not, the lawsuit continues. 

Practice Pointer.  The expense for correcting violations of the ADA in places of public accommodation can range from several thousand dollars to over a million dollars.  When I am out and about, and go into places of public accommodations, such as gas stations, restaurants, shopping centers, etc., I notice violations of the ADA on a regular basis.  It is advisable for owners of properties, that qualify as a place of public accommodation,  do an ADA audit to make sure that they are in compliance with the ADA.  Spending a little time and money up front to ensure compliance with the ADA may save a great deal of time and expense if a lawsuit is filed.

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On March 19, the Department of Labor issued their model notices for COBRA as part of the American Recovery and Reinvestment Act of 2009 which was passed last month by Congress.  The forms applicable for COBRA Continuation Coverage Assistance under the Act are available on the DOL website.  The 4 separate notices are designated as general notice (full version), general notice (abbreviated version), alternative notice and notice in connection with extended election periods.  All COBRA eligible employees, and their qualified beneficiaries, involuntarily terminated between September 1, 2008, and December 31, 2009, qualify for the 65% subsidy on COBRA premiums.  Former employees who elect to use the subsidy are responsible for 35% of the premium, and the employer is responsible for the other 65%, which will be recovered as a credit against their quarterly payroll taxes. 

Practice Pointer.  Employers are required to give notice to employees of the available subsidy (and have been required since February 17, 2009) and the employee and qualified beneficiaries have 60 days to decide whether to sign up for the subsidized COBRA program. 

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Johnny Hawkins, a black male employee, who worked for Alabama Aviation Industries (formerly known as PEMCO) for 25 years, was awarded a $500,000 jury verdict based on gender and race discrimination.  Hawkins, who was working as a sheet metal mechanic, was abandoned by a female worker who was supposed to be watching over him for safety purposes.  According to Hawkins' attorney, the female co-worker violated OSHA regulations because she went to lunch while Hawkins was left unattended in a confined space.  After this happened, Hawkins grabbed the female co-worker by the shoulder to get her attention and to tell her that she left him unattended.  She was not disciplined at all for abandoning Hawkins.  Other white male workers, according to trial testimony, received little or no discipline for for touching or harassing females.  For a more detailed account, see the article in the Birmingham News. 

Practice Pointer.  All employees must be treated consistently to avoid the appearance of discrimination based on gender, race or other prohibited factors.  When disciplinary action is taken, especially termination, it is important to conduct a proper investigation and document the reasons for the disciplinary action. 

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The Internet continues to be both useful and damaging in the employment arena.  During speeches that I give, I often mention that anything on the Internet can cause problems at work.  The most recent example occurred just this week:  according to ESPN  a stadium worker of 6 years was fired because of a posting on his Facebook site.  Dan Leone, who worked 6 years as a gate worker at the stadium where the Philadelphia Eagles play, posted, on his Facebook page, "Dan is [expletive] devastated about Dawkins signing with Denver...Dam Eagles R Retarted!!" about an Eagles player being signed by Denver after becoming a free agent.  Notwithstanding the fact that Leone deleted the post, and apologized, the Eagles fired him several days after it was posted. 

Practice Pointer.  Facebook, as well as other web sites such as Myspace, often contain information that employers may take into account when hiring.  Students, prospective employees and current employees need to be aware that many companies search these sites on a regular basis, and negative content may  be a reason for applicants not getting the job they applied for or termination of current employment as Mr. Leone discoverd.

A new website, canmybossdothat   began operating last week.  This site, a project of Interfaith Worker Justice, states on the site that "Ethical employers should not have to face competitors who violate laws and basic decency.  This site seeks to have all work honor justice and respect the laborer and employer".  Cateories on this website include getting hired and fired, safety, pay, benefits and time off, unemployment insurance and how to protect your rights.  According to the Atlanta Journal Constitution, the site gives "state by state advice to the unemployed [and]...provides general guidance on workplace policies and employment law and encourages people to seek legal advice for more help."  Of course, on the top of the website is the following warning:  "Caution: Work computers can track internet usage, including  visiting  and emailing this site."

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Yesterday, I reported that the Executive Committee of the AFL-CIO was meeting in Miami, and Vice President Biden and Labor Secretary Solis would address the meeting in person.  President Obama, via a previously recorded videotape, made an appearance on Tuesday.  In the videotape, according to the Wall Street Journal, President Obama stated that "We will pass the Employee Free Choice Act".  The Senate should be considering the EFCA in by the end of the month. 

The EFCA remains high on the President's legislative agenda, and I anticipate it's passage will be pushed hard by the President in the Democratic controlled Congress.  I will continue to keep you posted as this Act winds it way through Congress.

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I have previously written about various aspects of the new administration and how it may impact on the growing presence of unions in Alabama and around the nation.  Today, the Wall Street Journal reports that union leadership is gathering this week in Miami to discuss their agenda, which is described as "ambitious".  At the top of the list is the Employee Free Choice Act legislation.  Recently appointed Labor Secretary Hilda Solis, who met with the group on Monday, and is scheduled to meet with them again today, is quoted in the Wall Street Journal as saying "There is a new sheriff in town".  Vice President Biden is scheduled to meet with the group on Thursday. 

The fact that both Labor Secretary Solis and Vice President Biden are attending the meeting of the AFL-CIO executive council in person demonstrates the Obama administration's intent of increasing union presence in the American work force. 

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