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

The Wall Street Journal reports today that more than 70,000 claims were filed with the EEOC for the first six months of the governmnet's fiscal year that ended on April 30, 2010.  This is a 60% increase from the same period last year.  The article looks at the increase from both the employer side and the employee side.  Due to layoffs, employees who are not able to find a new job quickly may be more likely to engage in the litigation process.  On the other hand, employers may be conducting layoffs improperly by replacing older workers with younger, lower paid workers.  Disability claims are also up 10% over the previous year, and more than 20% since 2007.  The increase is due, in part, to the amendments to the ADA that make it easier to qualify as being "disabled".  In light of the depressed economy, many employers are finding it more burdensome to accommodate their employees who are disabled due to the costs involved. 

Practice pointer.  As more charges are being filed with the EEOC, both by those employees who have been laid off, and by those employees who think that they may be laid off in an attempt to protect their jobs, employers must be more diligent than ever in training their workforce, documenting disciplinary problems, in making decisions about termination or reductions in force and in responding to the EEOC when a charge is filed. 

Another "Duh" moment

The American Bar Association Journal published one of those stories that make you wonder just how smart lawyers really are.  A California lawyer sued his law firm alleging that he was disciplined by having his pay cut, and ultimately fired after he refused to participate in the firm's weekend retreat titled a "New Warrior Training Adventure".  Among the activities, according to the lawsuit, was sitting naked in a circle with other man and discussing their feelings while passing around a wooden phallus.  The law firm contends that the retreat was not a job requirement, and the reduction in pay was part of his employment agreement.  The website for The Mankind Project, which runs the New Warrior Training Adventure, refers to the program as a "modern male initiation and self-examination" and that nudity "is NOT required" although "the VAST majority of men choose to participate". 

Practice pointers.

Of course, anyone can sue anyone for anything.  It does not mean that the suit will be successful.  Unfortunately, whenever a charge or suit is filed, it often results in a great deal of expense, both monetary (legal fees, expenses, manpower diverted to defending the suit instead of "real" work) and non-monetary (decrease in morale, distractions, bad publicity).

Additionally, this suit is a reminder that activities away from work may result in claims for harassment and/or discrimination.

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EEOC

As we are quickly approaching September 30, the end of the Government's fiscal year, I am reminded of a post I made last year about this time. On October 9, I wrote that the EEOC had filed 9 suits in Alabama and:   "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?"  We will find out over the next couple of weeks if the EEOC again rushes to file a number of lawsuits before September 30, and if they will cover the various claims they have jurisdiction over. 

Immigration

A reminder that ICE has published a final rule, that became effective on August 22 concerning how employers can sign and maintain I-9 forms electronically.  The rule allows employers to maintain I-9's in paper form, electronically, or a combination of the two.  The rule provides that the electronic system must provide an audit trail every time an I-9 is created, completed, updated, modified, altered or corrected, and the person performing the action.  The electronic system must be able to provide confirmation to the employee if requested.  Finally, the employer has 3 days from date of hire to complete the verification section of the I-9 (the "Thursday Rule": start work on Monday and complete form by Thursday).  To avoid potential claims of discrimination, the I-9 forms should not be maintained with the personnel files.

In another one of those "DUH" moments, the New York Times reports that a successful restaurant owner in San Diego is facing up to 30 years in jail, millions in fines and the seizure of his restaurant if convicted of illegally hiring 12 undocumented immigrants.  The article notes that the Obama administration implemented a policy in April, 2009 taking a tougher stance on employers who hire illegal immigrants, In 2009, ICE conducted less then 1,500 investigations, while conducting over 2,000 investigation during the first 7 months of 2010.  The Bureau of Labor Statistics estimates that 1.4 million of the 12.7 million workers in the restaurant business are foreign born, and are in the United States both legally and illegally.  The Pew Hispanic Center, in 2008, estimated that about 20% of the 2.6 million chefs, and 28% of the 360,000 dishwashers, were in the US illegally.  Mr. Malecot, the owner of the French Gourmet restaurant in San Diego, employs about 120 full and part time workers.  In 2006, Mr. Malecot's business catered, for free, a benefit honoring a veteran returning from Iraq.  Since the dinner was held at an Air Force base, heightened security measures resulted in identity checks showing that one of the workers was an Algerian immigrant working illegally.  In 2008, ICE officials conducted an armed raid on the business, seizing computers, paperwork and arresting 12 workers.  Since being indicted, the business has lost at least $500,000 in catering jobs, which make up approximately 70% of the restaurant's revenue.  In June, the owner of two restaurants in Maryland was ordered to forfeit more than $700,000 in assets, and faces up to 10 years in prison after pleading guilty to hiring and harboring illegal immigrants.  And closer to Alabama, in Mississippi, another restaurant owner pleaded guilty to hiring illegal immigrants and received a sentence of 1 year in prison and faces fines of $600,000. 

Pandemic policy

Last year, the world was abuzz with concerns over the H1N1 virus or Swine Flu.  Although it was not as serious as many people feared, it did have an impact on millions of people.  This years newest concern is the "super bug"  that is resistant to most antibiotics.  Although we don't know how wide spread this "super bug" may be, it is a reminder that employers should have a Pandemic Policy in place in the event the workforce is decimated by the flu, the "super bug", or even a natural disaster such as an earthquake or hurricane.

Social Media

Social media continues to create havoc for the legal system.  The ABA Journal published a story on September 2 where a juror in Michigan, in a criminal case, published on her Facebook site that she thought the defendant was guilty, before the case went to verdict.  She wrote that she was "actually excited for jury duty tomorrow...it's gonna be fun to tell the defendant they're guilty".  The trial judge found her in contempt, fined her $250, and ordered her to write a 5 page essay on the Sixth Amendment, which guarantees defendants a right to a fair and impartial jury. 

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