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

In Corbitt et al. v. Home Depot USA Inc., the 11th Circuit Court of Appeals reversed, in part, the District Court for the Southern District of Alabama's decision dismissing claims for sexual harassment and retaliation in violation of Title VII.  Corbitt and Raya were store managers for the Home Depot in Mobile and Pensacola.  They claimed that the regional human resources manager, Lenny Cavaluzzi, sexually harassed both of them for a period of 9 months.  Cavaluzzi allegedly had multiple personal telephone conversations with the plaintiffs, massaged their necks and shoulders at a corporate meeting, played with their hair and hugged them on numerous occasions.  Plaintiff's complained to various supervisors, but the conduct did not stop.  The conduct only stopped after a supervisor used a Home Depot hotline to report Cavaluzzi.  Both plaintiff's were fired a less than a month later. The trial court granted summary judgment in favor of Home Depot on all claims that were made by the plaintiffs.  In affirming summary on plaintiff's claim for harassment, the Court, in distinguishing sexual harassment from flirtation, held that "Flirtation is part of ordinary socializing in the workplace and should not be mistaken for discriminatory conditions of employment".  The Court reversed the lower courts finding that Home Depot did not retaliate against them by firing them, holding that sufficient evidence was presented that Cavaluzzi and another supervisor influenced the investigation in a way to have the plaintiff's terminated. The Court rejected any suggestion that the fact that the touchings were same-sex made them somehow more severe

Practice pointer.  Same sex harassment (as well as female on male harassment) occurs in the workplace and must be treated as seriously as traditional male on female harassment allegations.  Investigations must be done in a prompt, thorough and complete manner, and appropriate disciplinary actions taken.  As society continues to evolve, I anticipate more of these cases to reach the courts. 

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The case of Ricci v. Destafano continues to make the news.  I have reported on this case in several blog entries, and the most recent activity involves the white and Hispanic firefighters filing papers to pursue their claim for back pay, interest and attorney fees.  This case started in 2003 when the city refused to promote the 14 white and Hispanic firefighters: even though the test they took was race neutral, the city felt the results discriminated against black firefighters since none of the black firefighters who took the test scored high enough to get promoted.  The Supreme Court, in June, ruled in favor of the white and Hispanic plaintiffs, finding that New Haven violated their civil rights by disregarding the test results.  Recently, the plaintiffs received their promotions, and the black firefighters filed suit claiming they were discriminated against.  Now, the attorney for the plaintiffs is pursuing claims for back pay, interest and attorney fees.  According to theAP, Karen Torre, the attorney for the plaintiffs, they were subject to "the humiliation and economic hardship of prolonged career stagnancy in a rancorous atmosphere fostered by raw racial divides."  I will continue to keep you posted as this case progresses. 

Also in the news, President Obama signed into law the 2009-2010 spending bill for the Department of Defense, which includes a provision prohibiting most military contractors from enforcing mandatory arbitration provisions in their employment contracts.  The provision prohibiting arbitration came about as the result of a female employer of a defense contractor, working in Iraq, who claimed she had been raped by co-workers, and the employer attempted to enforce the arbitration provision in her employment contract.  In 6 months, this restriction will also apply to subcontractors. 

Finally, on the overtime front, the New York Times  reported this week that a lawsuit filed on behalf of 27 Mexican farm workers in Mississippi for overtime has been settled.  The employees were working under the federal H-2 Visa program, and claimed they were not paid for hours worked in excess of 40 hours a week.  The amount of the settlement was not disclosed.

I hope all of you have a Joyous Holiday Season and a Happy New Year. 

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Congress recently approved funding the EEOC with $23 million to help reduce the backlog of cases currently pending with the agency, some for as long as 3 years.  According to Ethisphere, staff levels at the EEOC have dropped by approximately 25% over the last several years. Last year, the EEOC saw a 35% increase in backlogged cases.  There are currently tens of thousands of backlogged cases pending with the EEOC.  This is consistent with my November 11, 2009 blog entry indicating that the acting director of the EEOC reported at the annual meeting of the Labor and Employment section of the American Bar Association that they were hiring 250 new employees. 

Practice pointer.  As the new employees come on board for the EEOC, expect both an increase in the disposition of backlogged cases, as well as more aggressive enforcement of the various laws that the EEOC is responsible for. 

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On Monday, December 14, the U.S. Supreme Court agreed to hear arguments in a case from the 9th Circuit (which includes California) to address whether employees of a governmental agency have a constitutional right to privacy in their text messages, sent and received on text pagers provided by the city of Ontario. The Los Angeles Times reported that police officers for Ontario were issued text pagers and advised that there was a limit of 25,000 characters a month, and any text over that limit would have to be paid for by the individual officers.  It was understood by the officers that some messages would be personal in nature and not related to their police work.  When the police chief learned that some officers were regularly exceeding the 25,000 character limit, he asked for an audit.  Arch Wireless, which was the service provider, sent transcripts  of the text messages to the chief, and the chief determined that the officer who filed the suit, Quon, had sent numerous personal messages, including to his girlfriend, who was also an officer, and they were sexually explicit.  Both the city and the wireless provider were sued by Quon and other officers after they learned that their text messages were read by the chief.  The trial court dismissed their suit, but the 9th Circuit overturned the ruling, finding that the reading of the messages was an "unreasonable search" prohibited by the 4th Amendment, and that Arch Wireless violated the Electronic Communications Privacy Act of 1986 by providing the contents of the text messages to the city. 

Practice pointer.  The Supreme Court's decision in this matter will help define the parameters of employee's privacy in the workplace.  Even though this case involves a governmental agency, it ramifications will most likely impact the private workplace as well. 

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A number of issues continue to arise in the employment context.  I expect you will be seeing more of these in 2010.  They include the following:

Overtime.  A California court preliminarily approved a $12.8 million settlement involving 650 potential class members claiming overtime.  According to Law.com, Lynn Farris ""who is lead counsel in a similar case against FedEx Ground in the Northern District of Indiana, said companies considering whether to classify people as independent contractors "are likely to take this settlement as further indication that that's a risky business choice."" 

City of New Haven.  I have previously written about the City of New Haven fire department case, Ricci v. Destafano.  The City of New Haven has promoted the 10 firefighters (white and Hispanic)based on a 2003 test and the Supreme Court's decision.  Now, an attorney for New Haven's black firefighters is quoted by the AP  as saying that "the fight is not over because the black firefighters were not heard."  I cannot even imagine the amount of legal fees incurred in taking the case to the Supreme Court and now it will have to be fought all over again by the city.

Jury Duty.  Since I just received my own notice to appear for jury service the first week in January, I found the following case interesting.  In Florida, a supervisor for a security guard company was awarded $150,000 by a jury who found that she was wrongfully terminated after serving on a jury, not being paid $400 for the first 3 days she missed from work(pursuant to county law) and the judge gave the plaintiff a copy of the law protecting jurors and a letter vouching for her jury service.  The jury awarded $30,000 for lost wages emotional distress and $120,000 in punitive damages.

Cool website.  Ebosswatch.com has published it's Worst Bosses of 2009 list.  Included on the list is Mike Swindle, who, while working at Hyundai Motor Manufacturing Company in Montgomery, was found to have harassed a female subordinate, resulting in a verdict in excess of $5 million.  I wrote about this case in my blog on May 4, 2009.

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On December 3, the IRS announced that it was lowering the standard mileage rates for 2010.  Citing lower transportation costs, the new rates, effective January 1, 2010 are as follows:

50 cents per mile for business-related use (down from 55 cents per mile in 2009)

16.5 cents per mile for medical or relocation -related purposes (down from 24 cents in 2009)

14 cents per mile for use to support a charity (unchanged from 2009).

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Wal-Mart agreed to settle a class action suit by as many as 87,000 current and former associates in Massachusetts for $40 million.  The suit, filed in 2001, alleged that Wal-Mart refused to pay overtime, denied rest and meal breaks, and changed time cards.  Each class member will receive between $400 and $2,500.  This settlement comes on the heels of Wal-Mart agreeing to settle 63 other state and federal class actions suits for up to $640 million. 

Practice pointer.  As the world's largest retailer, Wal-Mart's settlement numbers are extremely large.  However, as I have discussed before, there are numerous lawsuits being filed weekly in Alabama against much smaller companies claiming overtime is due to employees.  I am involved in a number of these cases, and they are worrisome to small business's because of the time it takes to gather information, the potential for liquidated damages, and the fact that plaintiff's are entitled to attorney's fees if they are successful.  I would strongly urge all companies to audit how they classify their employees to make sure they are in compliance with wage and hour laws.

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