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

Americans With Disabilities Act Turns 20

This week marks the 20^th anniversary of the passage of the Americans With Disabilities Act. According to the Washington Post, the EEOC released a report indicating that “workers with targeted disabilities – including deafness, blindness, missing extremities, mental retardation, and partial and complete paralysis – represent less than 1% of the federal work force.” Based, in part, upon this report, President Obama issued an executive order requiring federal agencies to increase their efforts to hire 100,000 disabled employees over the next five years. “The order directs the office of Personnel Management, in consultation with the Labor Department, the EEOC and the Office of Management and Budget, to design strategies within 60 days for recruiting and hiring disabled workers. Personnel Managers at government agencies must be trained in employing the disabled. Agencies will then be required to development plans for recruiting and keeping the workers.” Also, this week, the House of Representatives passed legislation making the Internet and television more accessible to the disabled. The Bill, which now goes to the Senate, would require the telecommunications industry to caption on-line television programs and that telecommunications equipment that is used over the Internet be compatible with hearing aids. 

Practice pointer.  There has been quite a lot of recent activity concerning the accessibility of web sites for visually and hearing impaired individuals.  As with many laws, technology moves faster then the law can.  Businesses with web sites should be prepared to address these issues in the near future.

Update on Nursing Mothers

The U.S. Department of Labor, Wage and Hour Division, issuedFact Sheet No. 73 providing general information on the breakdown requirement for nursing mothers in the Patient Protection and Affordable Health Care Act which became effective on March 23, 2010. The DOL states that “employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother. The frequency of breaks needed to express milk as well as the duration of each break will likely vary.” The DOL further points out that a bathroom is not a permissible location even if private. The location provided must be functional as a space for expressing breast milk. The DOL believes that “a space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public.” The break time only applies to employees who are not exempt from the FLSA’s overtime pay requirements. Employers with fewer than 50 employees are not subject to the FLSA break time requirements if compliance with the provision would impose an undue hardship. An undue hardship “is determined by looking at the difficulty or expense of compliance for specific employers in comparison with the size, financial resources, nature, and structure of the employer’s business.” The DOL further finds that “employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated the same way that other employees are compensated for break time.”

Home Depot Male-on-Male Sexual Harassment Case Settles

I recently reported on the Home Depot case involving  store manager David Corbitt.  While on appeal before the 11^th Circuit in a rare en banc session, the case settled and the appeal was dismissed before the court could enter a ruling. In light of the fact that the 11^th Circuit decided to hear the case en banc, the December panel opinion was vacated.

Practice pointer.  In light of the 11th Circuit's granting of an en banc hearing, the issues raised in this case peaked the interest of the judges.  Since the case was settled before a decision was released, the 11th Circuit will need to find another case with similar issues in order to address the issues raised in this case. 

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Recently, the 2nd Circuit Court of Appeals, which governs New York, Connecticut and Vermont, found that pharmaceutical reps employed by Novartis are not exempt under the FLSA and are entitled to overtime for any hours worked exceeding 40 in a week.  The court, on the same day, ruled against Schering on the same issue.  The court found that these reps are not exempt from overtime as outside sales persons or as administrative employees under the FLSA.  Earlier this year, the 3rd Circuit Court of Appeals, covering Delaware, New Jersey, Pennsylvania  and the US Virgin Islands, found that a pharmaceutical sales rep for Johnson & Johnson and AstraZeneca reps were exempt under the administrative exemption.  The 3rd Circuit did not address the outside sales exemption.  A key factor in the 2nd Circuit's decision was the fact that the Department of Labor filed an amicus brief, arguing that the pharmaceutical reps were entitled to overtime.  The court granted "controlling deference" to the DOL's position since it was not "plainly erroneous or inconsistent with" the DOL's regulations on the issue.  It is important to keep in mind that the pharmaceutical industry is somewhat unique since the reps are barred by federal law from making actual sales to physicians.  They can give samples to physicians, but cannot take orders for the purchase of drugs, and they cannot obtain a binding commitment from a physician to prescribe their particular drug.  The 3rd Circuit, in reaching the opposite conclusion, found that pharmaceutical reps "make sales in the sense that sales are made in the pharmaceutical industry" and were entitled to overtime.  Having been married to a pharmaceutical sales rep, I know that they do work long hours, usually over 40 per week, and their income is quite substantial, with many experienced and successful reps making over $100,000.  The amount of overtime they would be entitled to, if the 2nd Circuits opinion stands, will be astronomical. 

Practice Pointer.  Although these cases deal with a very specific and highly regulated industry, there may be implications for other marketing jobs where actual sales are not made: such as those who may promote products sold by others, or marketing type employees who may not fall under the FLSA's administrative exemption.  I anticipate that with the split among the circuits, and the wide ranging implications of the split, there is a good chance that this issue will make it's way to the Supreme Court, although it may take a number of years. 

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Social networking sites continue to cause problems for many employees, including attorneys.  In a recent article entitled "Lawyers "step in it" Through Social Media Incompetence", a number of stories are discussed concerning lawyers who have found themselves in trouble through the use of social media.  These include a North Carolina Judge who was reprimanded for "friending" a lawyer in a case he was assigned to, and discussing the case on Facebook; a California lawyer was suspended from practice for 45 days for blogging about a trial in which he served as a juror: a Florida lawyer was fined $1,200 for blogging that a particular judge was "an evil, unfair witch"; and an Illinois public defender had charges filed against him for posting confidential client information on his blog, including first names and jail identification numbers. 

A short but interesting article  published by The Advertiser entitled "Should social media be part of the workplace?" is a common sense review of the pitfalls of social networking in the workplace.  Aileen Bennett writes,"With privacy settings dubious at best and other people being able to take our information and copy and share, we must presume that everything we put on line is public.  If you are writing something that you don't want your boss to see, my advice would be not to write it.  if you are sharing someting that you wouldn't tell your mother, don't share.  If you are updating your status with information that you wouldn't share with 500 strangers, think again."

Last week, USA Today ran a front page article entitled "Latest police weapon: iWitness".  According to the article, iPhones store a great deal of information, including screen shots after mapping applications are closed, the user's browser history and GEO tags and identifying information with photos posted online.  Law enforcement is being taught how to retrieve iPhone data in criminal investigations.  It is only a matter of time before iPhones will be forensically examined in civil cases and internal investigations involving employee issues.

Practice pointer.  Social media policies should be in place at corporations and other places of business.  This will give some guidance to both employers and employees as to what can and should be done while using social media. 

Update on June 2 post

On June 2, I posted an entry addressing the termination of a white football coach at an historically black university and the coach's filing of a lawsuit alleging discrimination. The Atlanta Journal Constitution now reports that 4 white students have filed suit against Savannah State University alleging that their football scholarships were pulled because they are white.  It will be interesting to see how these lawsuits progress. 

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The EEOC announced another large settlement involving a large Alabama company.  The EEOC issued a press release on July 1 announcing a $100,000 settlement with McGriff Industries, a Cullman company, to settle a racial harassment and retaliation lawsuit filed by the EEOC.  According to the EEOC, "certain employees and managers in the Cullman facility routinely  used racially derogatory comments, slurs, and insults directed at or about African-Americans. The racial  misconduct escalated to threats and intimidation, including a derogatory threat  to cut one of the black employees. White  and black employees were offended by the racial misconduct, but were rebuffed  and retaliated against -- one employee was terminated and another had  his work assignments changed -- when they complained."

Practice pointer.  Training.  Training.  Training.  Supervision.  Supervision.  Supervision.  I don't need to say any more. 

Health Care Reform amends FLSA to require breastfeeding breaks.  Nursing mothers are now allowed to take a reasonable break when they need to express breast milk, and employers are required to provide a private location, other than a bathroom.  This applies for up to one year after the child's birth.  Employers with less than 50 employees are exempt if "an undue hardship" would be imposed by causing the employer significant difficulty or expense. 

Practice pointer.  As the Obama administration continues to put it's mark on the workplace with new laws and regulations, this is just another one that is now in place and imposes new obligations on employers.

FMLA claim for depression rejected.  The 8th Circuit, in the case of Kobus v. The College of St. Scholastica, Inc. found that  an employer has no obligation to reasonably accommodate an employee under the ADA when the employee did not inform the employer that he needed an accommodation.  Kobus was a painter for the college, and due to personal and family issues, was diagnosed with depression and prescribed Paxil.  He told his supervisor that he was suffering from stress and anxiety, but did not mention the diagnosis of depression.  When he told his supervisor that he needed time off work to deal with his stress, the supervisor placed a FMLA from Kobus's mailbox.  Kobus responded that he did not need leave.  Shortly after, Kobus was written up for excessive absenteeism.  Kobus then asked for "mental health leave" and his supervisor again asked if he wanted FMLA leave, and Kobus advised him that he did not have a doctor to fill out the FMLA form.  Kobus submitted a letter of resignation and received 2 weeks severance.  Kobus never mentioned depression or his medications and did not mention his condition or FMLA leave during his exit interview.  Kobus then sued the College claiming he was forced to resign and he was denied his FMLA rights and was discriminated against under the ADA.  The trial court dismissed these claims on summary judgment, finding that Kobus did not pursue FMLA leave and  "in fact, expressly rejected it", and that the ADA claim was due to be dismissed since he never informed the College that he needed a reasonable accommodation due to a disability. 

Practice pointer.  This decision demonstrated the need to train supervisors on various laws that apply in the workplace, including FMLA and ADA.  The supervisor, even though no mention was made by Kobus for FMLA leave, offered to treat it as such, and Kobus refused.  The Court further found that the ADA was not violated since Kobus never informed the College that an accommodation was needed. 

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