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

For the past 14 years, John Hithon has been pursuing his lawsuit against the chicken plant he worked at that ultimately was purchased by Tyson.  He began working for the plant in 1982, and was promoted to superintendent.  He applied for a shift manager position in 1995.  The two shift managers, who were white, did not receive a pay increase, and quit.  The plant manager did not hire Hithon or another black man, Anthony Ash, instead bringing in 2 white men from other Tyson plants.  A lawsuit was filed and went to trial in 2002.  The jury awarded Hithon and Ash $250,000 each in compensatory damages, and $1.5 million in punitive damages.  The evidence from the plaintiffs indicated that the plant manager used the term "boy" in addressing both Hithon and Ash on at least one occasion.  The magistrate judge overturned the jury's verdict, finding that there was not enough evidence for the jury to conclude that they were not promoted because they were black, and that the manager testified that in light of the plant performing poorly, he thought it would be best to bring in supervisors from outside the plant.  In 2005, the 11th Circuit affirmed the decision concerning Ash, but found that Hithon should get another trial since he was not even interviewed until after the plant manager selected one of the white replacements.  The case was appealed to the Supreme Court, which vacated the 11th Circuit's opinion and remanded it back to the 11th Circuit.  The Supreme Court found that the mere use of the word "boy", standing alone, is not evidence of racial bias.  "The speaker's meaning may depend on various factors including context, inflection, tone of voice, local custom and historical usage."  The 11th Circuit sent the case to the District Court to retry Hithon's case.  The second jury awarded Hithon $35,000 in back pay, $300,000 in compensatory damages and $1 million in punitive damages.  The magistrate judge again set aside the punitive damages, but let the remainder of the verdict stand.  The case was appealed to the 11th Circuit, and the 11th Circuit, in a 2-1 vote, directed the magistrate judge to enter a judgment for Tyson. 

Practice pointer.  This case is an example of what I mean when I say that justice is usually not speedy.  For 14 years, this case has been litigated, there were 2 jury trials, both resulting in verdicts in excess of $1 million, 2 appeals to the 11th Circuit, one appeal to the Supreme Court and the possibility of a 2nd appeal to the Supreme Court.  If I had to guess, and only guess, the legal fees incurred by Tyson were probably in excess of $1 million. 

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"Son" and "daughter" under the FMLA

The DOL  recently gave a broad definition to "sons and daughters" under the FMLA.  The DOL subtitles the announcement by saying "Interpretation is a win for all families no matter what they look like."  Secretary of Labor, Hilda Sols, is quoted as  saying  "No one who loves and nurtures a child day-in and day-out should be unable to care for that child when he or she falls ill.  No one who steps in to parent a child when that child's biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian. No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent. These are just a few of many possible scenarios. The Labor Department's action today sends a clear message to workers and employers alike: All families, including LGBT families, are protected by the FMLA."

Practice pointer.  Although courts have not yet had time to determine if the DOL's broad definition of son and daughter will be applied, it is likely to lead to litigation throughout the country.  Employers should examine carefully requests for FMLA leave by non-biological and non-legal parents on a case by case basis.

More Strange Stories

On June 2nd, I published an entry entitled"Two discrimination complaints where truth is stranger than fiction" which addressed a woman's claim that she was fired because she was too hot and an ex-football coach, who is white, suing the historical black university that dismissed him.  This week, Susan Antilla, with Bloomberg, published an article entitled "Sex harassment at work gets weirder, scarier."  She reviewed EEOC press releases, and come up with some of the stranger complaints made by employees.  I cannot do justice to them, so I would recommend that you read her article. 

Practice pointer.  Truth is stranger than fiction.  I routinely see allegations that make you go Duhhhh.  HR professionals need to continue to monitor the workplace, train the entire workforce on a regular basis, and take every complaint seriously, no matter how strange it may seem.

BlackBerries and Overtime

Last year, I wrote about the possible exposure to claims for overtime pay for the use of PDA's outside the regular 40 hour workweek.  A suit had been filed by various T-Mobile employees claiming that they were entitled to overtime pay since they had to use their PDA's after regular work hours.  NPR recently ran a story about a new class action lawsuit filed in Chicago by police officers.  Cheryl Corley's article, entitled "Using Your Blackberry Off-Hours Could Be Overtime" discusses a lawsuit filed by Sgt. Jeffrey Allen against the Chicago Police Department  alleging that he, together with other officers, had been given BlackBerries by the department and were using them routinely while off duty at the behest of the department, and not being compensated for it.  While using the BlackBerry for a minimal amount of time while off duty may not result in overtime, using 15 minutes a night may, and adds up in a hurry, especially in a class action suit.  Mayor Daley's reaction, as quoted in the article, is somewhat concerning, as he said the suit is "silliness in time of economic crisis" and "We're public servants.  If I asked for that, I'd be paid millions of dollars.  We'd have to take all the BlackBerrys away from the workforce."  Mayor Daley's quote is followed by a quote from Sean Rogers, an arbitrator who happens to be a former Washington D.C. police officer and is now the head of an arbitration firm:  "I don't think that any mayor would say that anti-discrimination laws are silly.  There are similar laws....I had one arbitration that involved 7,000 employees and they ultimately settled for something over $23 million."

Practice pointers.

As I have written and talked about in the past, it is important for companies to have electronic communications policies, including the use of PDA's away from work.  Companies that permit, or even require the use of PDA's away from work may be subjecting themselves to overtime claims by non-exempt employees.

Additionally, employers should have a policy concerning who will deal with the press.  In my opinion, I would not want a corporate CEO making the statements that were attributed to Mayer Daley: they may come back to haunt him as this case progresses through the court system. 

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In February, 2009, I wrote that "I anticipate the courts, especially the District Courts, will be busy in 2009 and 2010.  They will be busy looking at the ADAAA, the new FMLA regulations and other new laws that may be passed by Congress. "  USA Today reports today that the number of ADA charges filed in 2009 hit an all time high: with almost 21,500 ADA related charges being filed with the EEOC.  The author, Marisol Bello, concludes that "the main reasons for the increase:  the recession and an amendment to the ADA that broadened the definition of what it means to be disabled."  Adverse employment actions claimed by people with disabilities include termination, passed over for promotion, not being transferred to a job that matches the persons abilities and not providing reasonable accommodations.  Chai Feldblum, the EEOC Commissioner, explains the EEOC's belief that the ADA provides broad coverage: "You might not think that you have a disability, but if you have a medical condition and you feel you are discriminated against based on that condition, then you are covered."  From an employer's point of view, the not so bad news is that of the 18,776 cases concluded by the EEOC last year, 60% were found to have no basis under its rules, and about half of the cases it did take resulted in an outcome favorable to the employee.

Practice pointer.  The ADA will continue to be a growing area of charges and lawsuits as the courts interpret the 2009 amendments to the ADA which was passed by Congress to increase those individual covered under the act.  Employers must be sure they are complying with the ADA when dealing with issues involving disabled workers, from hiring to termination, and every step in between. 

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I have regularly reported that FLSA overtime cases continue to be filed in large numbers.  Recently, the New York Times published an article addressing overtime issues in hospitals and nursing homes.  Robert Pear wrote that the Obama administration is looking into pay practices throughout the health care industry.  The investigation was prompted after a finding that many hospitals and nursing homes do not properly pay overtime to nurses and other employees who work in excess of 40 hours per week.  The Department of Labor has recently recovered more than $1.7 million in back wages for approximately 4,000 employees of SSM Health Care, a Roman Catholic system.  Partners HealthCare System in Boston paid more than $2.7 million in back overtime wages to 700 employees.  There is a proposed class action settlement in California involving Kaiser Permanente, requiring payment of $7.25 million to hundreds of medical workers who were allegedly classified as exempt.  Mr. Pear notes that "The Labor Department has hired 250 new wage-and-hour investigators, representing a staff increase of one-third.  The government wants to make sure workers get "every penny they earn," said Kenneth Stripling, a Labor Department official leading enforcement efforts in Birmingham, Ala.....Nursing assistants, licensed practical nurses, janitors and cooks "are particularly vulnerable to wage violations," Mr. Stripling said."   The president of the Greater New York Hospital Association is quoted as saying: "Hospitals are complicated organizations, and record-keeping for employees is astronomically complicated...Workers cannot just drop patient care when the lunch hour arrives.  We are not like an assembly line, which can shut down at lunchtime, or a bank, where people work 9 to 5."

Practice pointer.  As the DOL continues to increase enforcement of the FLSA, especially as it pertains to overtime, many industries, including health care, will be subject to increased scrutiny.  Now is a good a time as any for employers to review the classification of their employees to make sure that those entitled to overtime receive it if they work over 40 hours per week. 

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An ex-employee of Blue Cross Blue Shield of Alabama, Latonia Davis, pled guilty to charges of trafficking stolen identities.  Ms. Davis used the protected health information of BCBS members to try to obtain credit cards.  She apparently used the companies internal database to obtain the social security numbers of at least 7 people.  She was sentenced to a 10 year split sentence, to serve 18 months, followed by 3 years of supervised probation. 

Practice pointer.  Sensitive information, such as social security numbers, need to be protected by all companies.  This includes sensitive information of employees as well as customers/patients/members, etc.  Policies and procedures, as well as regular training, should be provided to any employee who has access to this type of sensitive information. 

Hewlett-Packard CEO resigns after Sexual Harassment Investigation

I often caution HR professionals that any employee, from the top to the bottom of the company, can be involved in sexual harassment.  On Friday, HP announced the resignation it's CEO, Mark Hurd following a sexual harassment investigation.  Mr. Hurd had on ongoing personal relationship with one of HP's contractors.  According to the Wall Street Journal, the woman at the center of the controversy is Jodie Fisher, a 50 year old sometime actress.  Ms. Fisher sent a letter to HP on June 29 alleging sexual harassment.  She now states that she is "surprised and saddened that Mark Hurd lost his job over this.  That was never my intention." Although the outcome of the sexual harassment investigation found that HP's sexual harassment policy was not violated, HP found that Mr. Hurd "demonstrated a profound lack of judgment" by filing several inaccurate expense reports meant to conceal the relationship.  According to the WSJ, Mr. Hurd "did not fill out his own expense reports and offered to pay back the amounts involved, which totaled about $20,000."  Interestingly, the WSJ is reporting that business experts are debating whether the HP board acted decisively or too rashly in terminating Mr. Hurd.

Practice pointer.  Policies and procedures are for ALL employees, even the CEO.  They must be enforced consistently and fairly for all, even if it means disciplining, up and including termination, the CEO, best sales person, or other valuable employee. 

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