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

I was in Memphis yesterday to attend the finals of the Dizzy Dean World Series.  Fortunately, my son's team, the Alabama Rays, won the senior division. Unfortunately, in the 6th inning, the tornado sirens went off.  Heavy rain, lots of lightning, strong winds and word of a nearby tornado.  The park board had a weather emergency plan: all the players, parents and others in attendance were required to go into the only building available: either in the bathrooms or the concession storage closet.  Although a tight fit, everyone did as instructed.  After about 30 minutes, the all clear was given and we were allowed back outside.  Later, we learned that a tornado touched down about 5 miles away, causing damage to buildings, cars, etc.  I was impressed that the park board had a weather emergency plan, those in charge knew what it was, and it was implemented quickly and efficiently. 

Practice pointer.  It is important that companies have a weather emergency plan in place, all employees are trained as to what it is, and that it be implemented as necessary.  Training should take place on a regular basis, and supervisors need to  know what to do when the tornado sirens  sound.  Employees who are injured may be eligible for workers' compensation benefits.

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Last month, on June 24th, I wrote about possible unintended consequences of social networking, and the possible claim for overtime.  Now, a recent proposed class action is being pursued against T-Mobile in New York.  According to Law.com, non-exempt sales associates and supervisors  of T-Mobile were issued  smartphones and "were required to review and respond to numerous T-Mobile-related e-mails and text messages both day and night, whether or not they were logged into T-Mobile's computer based timekeeping system."  The complaint, filed in federal court in the Eastern District of New York, also alleges that these employees were required to participate in various employment related activities, such as participate in conference calls and receive and make work related telephone calls without getting paid.  It is also alleged that employees were required to work off the clock during scheduled meal breaks. Once again, it appears as if technology is moving faster than the law.

Practice Pointers.  Employers should have clear policies and guidelines to ensure that all work related time is captured, even if working at home with  smartphones or personal computers.  The workforce should be trained as to what is and what is not acceptable to the employer in regards to working away from the office: is it permissible?  Does overtime need to be approved in advance by supervisors? Who owns the information? Is it confidential?  Supervisors should be trained to never instruct non-exempt employees to work off the clock.

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In 2008, age discrimination charges rose nearly 30% from 2007.  At the same time, the Supreme Court has narrowly interpreted the ADA, making it more difficult for workers to pursue age related claims.  The EEOC feels that there is an "equal opportunity plague" of age discrimination facing older works.  Steve Vogel, of the Washington Post, reported today that EEOC Acting Chairman Stuart Ishimaru, at a  public hearing, questioned "whether 'the public generally realizes that age discrimination is illegal.' "  Mr. Ishimaru went on to say that "Age discrimination is an equal opportunity plague...It is not limited to members of a particular class or a particular race.  It is not limited to particular industries or particular regions.  And it is not limited to a particular gender." Mr. Vogel also quoted acting Vice Chair Christine Griffin, as saying "it's fair to anticipate age discrimination charges will rise as the financial crisis plays out."  EEOC Commissioner Constance Barker was quoted as saying: "How often do we hear employers talking about getting fresh blood in?...What are they talking about? They want younger and cuter."

The AP reported that the EEOC is considering drafting new regulations to clarify how the recent Supreme Court rulings addressing age discrimination should be enforced.  Senator Patrick Leahy, Chair of the Senate Judiciary Committee,  last month mentioned that Congress may amend the ADEA in light of the Supreme Court rulings, just as they passed Lily Ledbetter Fair Pay Act to counter the Supreme Court's decision in that case.

Practice pointer.  In these tough economic times, when laying off or terminating employees, age is a factor that must be examined in determining who is let go.  HR should be involved in all decisions concerning lay offs/terminations due to a reduction in force.  A front line supervisor should not be making these decisions in a vacuum, due to the possible exposure to liability, not only for possible age discrimination but also for other types of discrimination under Title VII. 

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The third and final increase in minimum wage over the past three years will become effective on Friday, July 24, 2009.  Yes, only the government can implement such a major change to become effective on a Friday.  The minimum wage is going from $6.55 to $7.25 an hour for non-exempt workers.  This will result in an annual increase of nearly $1,500 per minimum wage worker, if there is no overtime.  As the country continues to work its way through these tough economic times, I believe that the $.70 an hour increase will put an additional financial strain on many small, medium and even large businesses. 

Practice pointer.  Now is a good time for employers to review the classification of their employees  for FLSA purposes.  One of the most frequent problems I see, and one of the most frequent type of lawsuits being filed, involve claims for overtime. 

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