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

This morning, the U.S. Supreme Court, in a 93 page 5-4 opinion, reversed the lower courts' decision in the case of Ricci v. DeStefano.  I previously wrote about this case on February 3 and April 22.  In Ricci, the white and Hispanic plaintiffs claimed that they would have been promoted if the city of New Haven Conn. did not invalidate the test results because no black candidates scored high enough to be promoted.  Justice Kennedy delivered the opinion for the Court, finding that the city's actions violated Title VII.

Initially, Justice Kennedy addressed the burden shifting provisions of Title VII: once a plaintiff establishes a prima facie case of disparate impact, the employer may defend by demonstrating that its policy or practice is job related for the position in question and consistent with business necessity.  If the employer meets that burden, the plaintiff may still prevail by demonstrating that the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer's legitimate needs.  The Court found that the City's actions, not validating the test scores because the higher scoring candidates were white and Hispanic,  violated Title VII's disparate treatment prohibition. Without some other justification, the express, race-based decision making is prohibited by Title VII.  The Court decided the question of whether the purpose to avoid disparate impact liability excuses what otherwise would be prohibited disparate treatment discrimination.    The Court found that fear of litigation alone cannot justify the city's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.  Finally, the Court concluded that If, after it certifies the test results, the city faces a disparate impact suit, then in light of this decision, the city can avoid disparate impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate treatment liability.

Practice Pointers. 

1.  President Obama's nomination to the Supreme Court, Sonia Sotomayor, was on the 2nd Circuit panel which affirmed the district court's summary judgment in favor of the city which was reversed by the Supreme Court.  This decision will provide some ammunition for her critics.

2.  This opinion will be the starting point for employers who are worried about disparate impact claims.  Unfortunately, it may not provide all the answers, since each case will need to be decided on its own merits.

3.  Since the Court decided the case on Title VII grounds, and not on the Equal Protection Clause (which was also raised in this case), it is likely that this decision will apply to private employers as well as public employers.

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On May 1, I published an entry addressing social networking in the workplace.  Subsequent to that time,  I had the opportunity to give another presentation on social networking.  Some interesting questions were asked by attendees that raised additional issues that need to be considered by employers when their employees are using social networking sites for business purposes.  One company permits its workers to use social networking sites to communicate for business purposes after regular business hours.  This raises questions concerning the FLSA and overtime: if non-exempt employees are conducting company business from their personal computers/PDAs, after regular business hours, are they entitled to compensation, including overtime if they work more than 40 hours a week?  Are the employees "on call", thus entitling them to compensation?

Another issue is the ownership of the information exchanged between an employer and an employee on personal computers/PDAs: should someone leave their employment, can they use information on their personal computers/PDAs when they start working for someone else who is a competitor?  Is the information confidential if no steps are taken to make it confidential?

One question that was asked had ADA implications:  a supervisor learned from a social networking site that one of the employees was suffering from depression.  Did the supervisor have an obligation to report this to HR?  If so, did HR have an obligation to go through the interactive process with the employee to determine if the depression was impacting his ability to work?  If so, were there any reasonable accommodations that could be made?

Practice Pointer.  Technology is moving too fast for the courts to keep pace.  Answers to these questions, and many others, will take years to wind their way through the courts.  In the meantime, it is recommended that employers adopt appropriate policies and procedures concerning the use of social networking sites for company business, and confidentiality and ownership of information that may be on personal computers/PDAs. 

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 Facebook, Inc. effective Saturday, June 13th, announced that users of the Facebook website will be allowed for the first time to create personalized URLs for their Facebook pages (facebook.com/yourname). There is a risk that some Facebook users will attempt to incorporate third party brands into their personalized Facebook usernames.

Facebook, Inc. has created an online form for rights owners of registered trademarks interested in preventing their trademarks from being registered as usernames by Facebook users.  Unfortunately, time to register your trademark has expired. 

Trademark owners, if there is an infringement on your trademark, can file their complaint on the Facebook platform by submitting relevant information to Facebook, Inc. through their trademark protection contact form. 

Practice Pointer.  If you have a registered trademark that you want to protect, I would recommend that you check Facebook on a regular basis in the event  someone else does is using your trademark. 

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Today, in Gross v. FBL Financial Services, Inc., the United States Supreme Court, in a 5-4 opinion, issued an opinion distinguishing the Age Discrimination in Employment Act (ADEA) from Title VII, finding that the text of the ADEA does not authorize a mixed-motives age discrimination claim.  The facts of the case are as follows:  Gross began working for FBL in 1971, and in 2001 he was a claims administration director.  In 2003, at the age of 54, he was reassigned to the position of claims project coordinator.  Many of Gross' job responsibilities were transferred to a newly created position: claims administration manager, which was filled by a female in her early 40's, who had previously been supervised by Gross.  Although the two positions paid the same, Gross believed he was demoted because of the reallocation of his former job responsibilities.  Gross filed a lawsuit alleging a violation of the ADEA, and at trial, introduced evidence suggesting that his reassignment was based at least in part on his age.  FBL alleged that the job reassignment was part of a corporate restructuring and that Gross' new position was better suited to his skills.  Gross was awarded $46,945 at trial, and the 8th Circuit reversed and remanded based FBL's challenge of the jury instructions given at trial, that the jury "must return a verdict for Gross if he proved , by a preponderance of the evidence, that FBL "demoted him to claims project coordinator' and that his 'age was a motivating factor' in FBL's decision to demote him".  The jury was also instructed that they must find for FBL "if it has been proved by the preponderance of the evidence that FBL would have demoted Gross regardless of his age". 

Justice Thomas, writing for the majority,  found that the burden of persuasion does not shift to the party defending an alleged mixed-motives discrimination claim brought under the ADEA.  Justice Thomas further found that the ADEA is materially different with respect to the relevant burden of persuasion from Title VII, and as such, Title VII decisions do not control the construction of the ADEA.  Finally, the text of the ADEA does not authorize a mixed-motives age discrimination claim.

Practice Pointer.  This decision is favorable to employers in the ADEA context.  This interpretation will make it more difficult for plaintiff's to successfully prosecute ADEA claims.  It is important to remember that Alabama has it's own age discrimination statute, and that this opinion should also apply to cases pending in state court since the statute basically adopts federal law. 

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Recently, one of my partners, David Mellon, presented a talk entitled "Background Checks & Title VII: Discriination Lurking in the Shadows".  When a criminal background check is provided to an employer by a consumer reporting agency (CRA), the Fair Credit Reporting Act (FCRA), 15 U.S.C.Section 1681 et seq is applicable.  The FCRA creates obligations for both the CRA preparing criminal background reports and for employers using them.    A CRA may furnish a consumer report to an employer for employment purposes.  A CRA may not report arrests or other adverse information (other than convictions of crimes) that are more than 7 years old.  Before an employer (other than in the trucking industry) obtains a consumer report of criminal records from a CRA for purposes of employment decisions, the employer must do certain things, inlcuding providing the applicant with "clear and conspicuous disclosure" that the report may be obtainted for employment purposes, ensure that the disclosure is written in a document that consists only of the disclosure, and receive the applicant's written authorization to obtain the report. 

Recently, Law.com  reported that Bank of America Corp and Manpower Inc. were accused of discriminatory hiring practices when Manpower Inc. distributed fliers stating that qualified candidates "must be able to pass a background check and have no felonies or misdemeanors".  Although there is no federal law that specifically imposes any limitations on an employers' decision predicated on criminal records (although 4 states do, Hawaii, New York, Pennsylvania and Wisconsin), the EEOC has found that employer policies that reject job applicants with criminal records, even if they are neutral on their face, have a racially disparate impact.  In 1985, the EEOC issued a policy setting forth the business necessity standard for the consideration of convictions: 

     1.  The nature and gravity of the offesne.

      2. The time that has passed since the conviction and/or completion of the sentence.

      3.  The nature of the job.

The EEOC Policy Guidelines on Arrests reaffirms the 3 progned business necessity test set forth in their Policy Guidelines on Convictions.  The arrest guidelines go on to state that with respect to consideration of arrests, "a blanket exclusion of people with arrest records will almost never withstand scrutiny".

Practice Pointer.  In the event a company uses a CRA to conduct background investigations, that include criminal history, the company must ensure that all applicable rules and regulations are followed by the CRA, and any history of arrests or convictions be used in compliance with EEOC policies. 

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