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

The United States Supreme Court recently refused to hear the case of Kellogg v. Energy Safety Services, Inc. which dealt with the question of whether driving is a major life activity under the ADA.  Kellogg worked as a safety technician for Energy Safety Services, and was required to drive a company vehicle to numerous work sites.  Kellogg  was diagnosed with epilepsy, and although she was cleared to continue working, her doctor prohibited her from driving.  Her employer advised her in writing that she worked in a "safety-sensitive" position, and she could not return to work without a full release from her doctor.  Kellogg sued under the ADA, and the jury found in her favor, awarding nearly $150,000 in compensatory damages and back pay.  On appeal, the 10th Circuit reversed the trial court, finding that driving is not a major life activity under the ADA.  The Supreme Court denied certiorari on Energy Safety Services application.  The following circuits have held that driving is not a major life activity under the ADA:  2nd, 3rd, 4th, 7th, 10th and 11th.  The 11th Circuit covers Alabama. 

Practice Pointer.  Although all these cases were decided under the old ADA, it must be noted that driving was not listed as a major life activity in the EEOC regulations under the old ADA, and it is not listed in the revised list of major activities under the ADA Amendments Act of 2008.  I anticipate as new cases wind their way through the courts under the ADA Amendments Act of 2008, this issue will continue to be addressed. 

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On Monday, May 18, the US Supreme Court issued another employment related opinion, this time dealing with the calculation of retirement benefits based on pre-Pregnancy Discrimination Act policies.  In AT&T Corp. v. Hulteen (US Supreme Court 5/18/09) Justice Souter, in a 7-2 vote, delivered the opinion finding that AT&T's pension benefits, which were calculated in part under an accrual rule that was applied only pre-PDA, and gave less retirement credit for pregnancy than for medical leave generally did not necessarily violate the PDA.  When the PDA became effective in 1978, AT&T changed it's policy to allow the same service credit for pregnancy as for other medical leaves of absence, but did not make the change retroactive, resulting in four employees suing AT&T because their pregnancy leaves resulted in smaller pensions.  The Court found that since Congress did not apply the PDA retroactively, AT&T did not have to make it retroactive either.  If the plaintiff's position had beeen upheld by the Court, it would have created a tremendous burden on companies to re-calculate pensions for women leaving the workforce now and in the near future, who were subject to pension rules similar to AT&T. 

Practice Pointer.  From time to time, courts need to address changes in the law that took place decades ago.  It is important that companies review and revise their record keeping policies and procedures to comply with all applicable state and federal laws.  Even when in compliance, records may be inadvertently destroyed that are needed later on.

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Tammy Edwards was awarded 5.79 million dollars by a jury in Federal Court in Montgomery for sexual harrassment, negligent supervision, and retaliation.  The Birmingham News reported late Friday, the jury  awarded $795,000 in compensatory damages, $5 million in punitive damages against Hyundai, and $10,000 against a supervisor, Mike Swindle, who was sued in his individual capacity.   The facts of the case involve Swindle propositioning Edwards for oral sex, sex, and threatened to blow her husband's head off.  Swindle also blocked her was in the hall, bumped against her with his hands behind his back, hugged her and pulled her hair by grabbing her pony tail.  Edwards complained to one supervisor, who took no action although he admitted he knew that Swindle's behavior was often objectionable.  She also complained to another supervisor, who laughed it off and said that Swindle will tell you "stuff you don't want to hear".  For a more detailed explanation of the causes of action and the facts of the case, you can read Judge Thompson's order denying Hyundai's Motion For Summary Judgment dated March 27, 2009. 

This is a textbook case on what can and often does go wrong in the work place.  Edwards missed her sexual harassment training because she was out sick  There was no signed receipt showing that Edward's received the 47 page, single spaced policy manual.  Swindle was transferred to another position, but his physical location was actually closer to Edwards then before he was transferred.  Swindle continues to work at Hyundai.

Practice Pointer.  It is essential that all complaints of harassing behavior be treated seriously, a proper investigation take place, and the appropriate remedial measures be implemented.  For an interesting perspective on how the general public views these type of cases, I would highly recommned that you read the Birmingham News article and the comments from the readers. 

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Several weeks ago, I gave a presentation on behalf of Sterling Educational Services to a number of attorneys and HR professionals entitled "Employee Privacy In The Workplace".  I addressed a number of areas, including employee privacy, evaluating performance and employee off-duty misconduct.  During the presentation, the majority of the questions dealt with social networking and privacy issues involving the internet and other electronic devices.  Several recent artilces that appeared in the Birmingham News demonstrate how the internet and other electronic advancements continue to outpace the corporate world.  On April 15, an article by Mary Orndorff dealt with several Alabama Congressmen who use Facebook, Twitter, Myspace and Youtube.  On the same day, an article appeared concerning police and fire agences using Twitter to communicate that was published by Carrie Antlfinger with the AP.  Today, an article by Ian Rapoport appeared in the sports section about the University of Alabama football coaches using Twitter for recruiting purposes.  Another articlesappeared this week dealing with the use of GPS devices in divorce cases.

With technology continuing to advance at a rapid pace, it is advisable for employers to have the appropriate policies and procedures to deal with the use of Twitter, Facebook, Linkedin, Myspace, Youtube and GPS devices both on company time and off of company time.  Many disgruntled employees post their views in the public domain, which may have an adverse impact on their company.  Others post positive views, which would be beneficial to the company.  Some policies are a single paragraph, while others are multiple pages long. What it comes down to is be respectful, and if you can't say it to your mother, don't say it on the internet!!

Practice Pointer.  It is advisable for employers to have a policy tailored to their needs concerning social networking.  The policy needs to be reviewed and updated on a regular basis, as technology continues to advance.

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