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

On Tuesday, November 10, 2009, Sirote & Permutt's Labor and Employment Department  will host it's annual year end seminar.  This year, the seminar is entitled "Get Your Tools Together...The Latest in Employment Law" and will be  interactive, and address various issues, including Preparing for the H1N1 Flu, Record Retention, Interviewing and Hiring, and Legal Pitfalls of Telecommuting and Working Outside the Office.   The seminar is open to the public and runs from 8:00 a.m. to 1:00 p.m.  This year, the seminar will be held at the Cahaba Grand Conference Center.  For more information and to RSVP, click here.

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Alabama Child Labor Law Changes

Earlier this year, the Alabama Legislature passed the Child Labor Reform Act of 2009. The lawyers in Sirote's Labor & Employment Group have received a number of questions about the changes from our clients who regularly employ minors. There were some small changes to the substantive provisions regarding the hours of work and the prohibited occupations. However, the primary changes relate to the permitting process and record-keeping requirements for employers. The full text of the Act can be found at Alabama Code § 25-8-32, et seq. Here is a summary of the primary changes to the law:

New Requirement for Certificates

Individual work permits for each minor employed are no longer required. Instead, an employer must purchase a certificate from the Alabama Department of Labor fir each location where it will employ minors. A Class I Certificate is required for each location where the employer will employ minors ages 14 or 15, and a Class II Certificate is required for each location where the employer will employ minors ages 16 or 17. The certificates, which must be renewed annually, cost $15 and may be purchased online at www.labor.alabama.gov.

Eligibility to Work Form

If an employer will employ minors under 16 years of age, the employer must receive and maintain an 'eligibility to work" form for each such employee. Similar to the old work permits, these forms are issued to the students by schools. The forms certify that the students have satisfactory grades and attendance in order to be eligible for employment. The employer must maintain the "eligibility to work" form in each 14 and 15 year old employee's personnel file.

Additional Record-Keeping and Posting Requirements

Each employer must now keep on the premises at which a minor is employed a separate file for each minor employee. The file must include the employee's name, home address, date of birth, date of hire, proof of age, school of attendance, and time records that state the number of hours worked each day, including the employee's starting and ending times, as well as break times. The employer must keep these records on file for no less than three years.

Along with the new record-keeping requirements, there is a new Child Labor Law poster. At every location where minors work, the employer must display the new poster.

New Break Period Requirement

Employees under 16 years of age who are employed for more than 5 continuous hours must now be given a documented break period of at least 30 minutes for a meal or rest. The break period is applicable whether or not school is in session. There is no similar break provision fir employees age 16 and older.

Penalties for Violation

If your business employs minors, you must be sure that you are in compliance with these new provisions. Of course, you must also be in compliance with the long-standing restrictions on the number of hours and types of occupations which may be worked by minors. Violators of the child labor laws may be subjected to civil penalties from $50 to $5,000 depending upon the nature of the violation.

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Many of us have read or heard about a number of the big box stores, such as Wal-Mart and Dollar General, that have been sued for overtime by managers and assistant managers.  These suits have resulted in judgments or settlements in the millions of dollars.  Recently, I have noticed a great deal of FLSA overtime lawsuits being filed in Alabama against "mom and pop" stores: such as small or medium size restaurants, many of which are franchisees of larger chains.  Several plaintiff's law firms are specializing in filing these suits.  In fact, during this week alone, I have seen at least 10 such suits that have been filed this week against such businesses as Flying J, Tire Engineers, Hambo Inc. dba Hamburger Heaven and Stough Convenience Store, Inc..  In these businesses, many managers, and especially assistant managers, are misclassified as exempt and are not being paid overtime when they work more than 40 hours a week.  These cases can be crippling for small businesses: liability is often fairly easy to prove, it takes a great deal of time to review payroll records for several years, attorney's fees can be assessed if the case is tried and lost, and there is the possibility of liquidated damages.  For a small business in these economic times, it is difficult to come up with several thousand dollars just to attempt to settle the case, let alone litigate and incur a great deal more in attorney's fees and expenses just to get the case to trial.

Practice pointer.  As we reach the end of the year, now is a good time to review the classification of employees to make sure that they are properly classified as exempt or non-exempt.  Merely calling a person a manager or assistant manager does not, in and of itself, make that employee exempt.  This can be a very complicated area of the law, and legal counsel is recommended when classifying employees for FLSA purposes.

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In June, the United States Supreme Court released a 5-4 opinion in the Ricci v. DeStefano case,  finding that the City of New Haven discriminated against white and Hispanic firefighters who claimed that they would have been promoted if the City of New Haven had not invalidated the test results because no black candidates scored high enough to be promoted.  I wrote in detail on this decision on June 29.

Yesterday, a black firefighter sued New Haven over the same promotion exam taken in 2003 that was the basis of the Ricci decision. Michael Brisco, who has been with the New Haven fire department for 10 years, alleged that he was discriminated against, based on race, because the test improperly gave more weight to the written part of the test than the oral section.  He further alleged that the test had a disparate impact on African-Americans since the scoring method was weighted 60 percent on the written portion, and 40 percent on the oral portion.  Brisco alleged that he ranked first out of the 77 candidates who took the test on the oral portion, but was only ranked 24th overall due to the fact that more weight was given to the written portion of the test.

Practice Pointer.  It will be interesting to follow this case as it winds through he courts over the next several years.  The City of New Haven just completed a case that went all the way to the Supreme Court, and paid untold thousands of dollars in attorney's fees, obtained a Supreme Court decision, and gets sued again over the same test that was given 6 years ago.  Sometimes, justice is not swift.

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According to Roy Williams of the Birmingham News, the Supreme Court today let stand a $35.6 million judgment against Family Dollar for not paying overtime to more than 1,400 employees who routinely worked 60-70 hours a week.  The jury found that Family Dollar mis-classified the workers as exempt managers, rather then non-exempt hourly employees entitled to overtime, and awarded overtime pay over an 8 year period of time.

Practice Pointer.  Misclassification of employees, under the FLSA, resulting in claims for overtime, is one of the most common employment claims being filed by employees or ex-employees.  Employers must be sure that their employees are properly classified to avoid damages if the FLSA is violated, which include back pay, liquidated damages and attorneys fees.

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It appears as if the EEOC is taking a more active role in filing lawsuits against employers in the name of the EEOC.  Over the last several weeks, the EEOC has filed at least  9 lawsuits in Alabama against various employers.  These lawsuits include alleged violations of the ADA against  two different employers when employees were terminated after the employers learned the employees were HIV positive, allegations that the Age Discrimination in Employment Act was violated when the employer failed to promote a 50 year old employee and hired a younger, less qualified individual, allegations that an employee was terminated because she was pregnant, and allegations that a racially hostile work environment existed because black employees were subjected to the use of the "N" word and the display of a noose in the workplace.  This trend appears to be occurring around the country, with notable cases being filed by the EEOC against Pace Airlines, which operated Hooters Air on behalf of an Asian flight attendant who was fired after complaining that only white workers were being promoted, and a case against a Chicago area automobile dealer alleging that female employees were called obscene epithets and female customers were call "dingbats".

Based on the timing of these lawsuits, it is difficult to determine if this will be a long term trend based on a change in EEOC philosophy, or if it was a last minute rush to file the suits before the end of the fiscal year, which ended September 30, 2009.  Is it possible the EEOC has quotas for the number of lawsuits it files?

The EEOC also recently announced a record $6.2 million settlement of a nationwide class action lawsuit against Sears over the firing of disabled workers.  According to Law.com, Sears fired numerous employees who took leave for work related injuries and that Sears "routinely declined to make accommodations to bring back employees who had taken workers' compensation leave or to offer them a brief extension of their leave to make it possible for them to return later". 

In other EEOC news, the Wall Street Journal today reports that there is a large increase in retaliation claims being filed by employees against employers.  For the fiscal year ending September 30, 2008, retaliation claims rose 23% to 32,690, more than a third of all claims filed with the EEOC.  Although many of the retaliation claims are filed together with underlying discrimination claims, as I often point out during speeches, an employer can be guilty of retaliation even if cleared of the underlying claim of discrimination. 

Practice Pointer.  As evidenced by the types of claims alleged in the lawsuits filed by the EEOC, it appears as if all types of discrimination may be occurring in the workplace.  It is a good time, as we get to the end of the calender year, for companies to review their policies and procedures, make sure that their work force, including supervisors, receives training on the companie's anti-discrimination policies, and that  HR continues to monitor the workplace to avoid claims of discrimination. 

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For only the second time, the Alabama Court of Civil Appeals addressed the merits of the Alabama Age Discrimination in Employment Act (AADEA) in the case of Lambert v. Mazer Discount Home Centers, Inc. In a 30 page opinion, the Court noted that Mr. Lambert had worked for Mazer for 29 years, and at the time of his termination, was vice president of marketing, responsible for purchasing building materials, deal buying and planning and purchasing times for the types of advertising for Mazer products and stores. Mike Mazer took over as president of Mazer in 2005, and spoke with Lambert on more than one occasion about him being away from the office working on a vacation home and a rental home he had in Florida. It also appeared that he was distracted from his work at Mazer due to the extensive renovations the rental home needed. In early 2006, Issues arose concerning Lambert ordering kitchen and bath products improperly. Lambert admitted that Mike Mazer expressed his displeasure over the kitchen and bath problems. Finally, Mike Mazer became increasingly dissatisfied with Lambert's handling of the advertising for Mazer. In May, 2006, when Lambert was 47, he was discharged, refused to accept a severance package, and his job duties were assigned to 3 existing employees, 2 older than him and one younger. Lambert sued Mazer under the AADEA.

In proving an AADEA claim, the plaintiff must first establish a prima facie case of discrimination. If the plaintiff is successful, the defendant must articulate a nondiscriminatory reason for the employees rejection. The plaintiff must then have an opportunity to prove by a preponderance of the evidence that the reason offered by the defendant was a pretext for discrimination.

In order to prove his prima facie case of discrimination, the court held that Lambert was not required to prove that he was replaced by a younger employee. Instead, the plaintiff must prove 1) that he was in a protected group and was adversely affected by an employment decision; 2) that he was qualified to assume another position at the time of discharge; and 3) evidence that supports a reasonable inference of age discrimination. Lambert met the first two elements, but failed to prove an inference of discrimination. Although Lambert offered age-related comments made by Mazer, these comments were not about  Lambert or his performance, and therefore failed to support his claim. Furthermore, the fact that one of the three employees who were assigned Lambert's job duties was younger did not amount to substantial evidence demonstrating age discrimination. Lambert's age discrimination claim therefore failed as a matter of law.

Practice pointer. The Alabama Court of Civil Appeals did an excellent job of following federal law applicable to the federal Age Discrimination in Employment Act, which governs the AADEA. As more AADEA claims are filed in state court, I anticipate that more decisions will be rendered by the Alabama Court of Civil Appeals and ultimately the Alabama Supreme Court.

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