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

It is hard to believe that another year, and another decade is soon behind us.  As one of my partners commented, it seems like just yesterday that we were worried about Y2K and the world coming to an end as we entered 2000.  This blog entry will be a series of brief comments about topics of interest in the employment arena.

EEOC Charges reach a record high.  The EEOC reports that it has received 99,922 charges for the fiscal year ending 2010.  The backlog of cases is just over 86,000, virtually unchanged from FYE 2009, growing only by 570 charges.   In FYE 2009, there were 93,277 charges filed, and in FYE 2008, there were 95,402, the previous record high. The EEOC resolved 104,999 cases during FYE 2010, recovering $319 million for claimants, an increase of $25.2 million from FYE 2009.  $142 million was recovered through the EEOC's mediation program.  The EEOC's Performance and Accountability report is available for review at www.eeoc.gov/eeoc/plan/2010par.cfm. 

EEOC turns its attention to Credit Reports.  The LA Times reported on December 27 that the EEOC is cracking down on the use of credit checks and criminal background checks in job screenings.  The EEOC sued Kaplan Higher Education Corp, "accusing the company of using a selection criterion for hiring and discharge-namely, credit history information-that has a significant disparate impact on black job applicants".  The EEOC lawyer that filed the lawsuit is quoted as saying that "Employers need to be mindful that any hiring practice be job-related and not screen out groups of people, even if it does so unintentionally".  Kaplan responded by stating that "We are an equal opportunity employer, and we are proud of the diversity of our workforce...[Kaplan] conducts background checks on all prospective employees.  For employees whose responsibilities include financial matters, such as those who advise students on financial aid, background checks also include credit histories." Kaplan intends to fight the lawsuit.

Social media infects juries.  The American Bar Association reports that at least 90 verdicts have been challenged as the result of jurors' internet conduct.  In 21 cases since January, 2009, judges have granted new trials or overturned verdicts.  The article reported that Reuters Legal recently reviewed tweets with the words "jury duty" for a 3 week period, and found "Tweets from people describing themselves as prospective jurors or sitting jurors popped up at the astounding rate of one nearly every 3 minutes".

NLRB Proposes New Posting Requirement of Employee Rights Under the NLRA.  In it's 75 year history, the NLRB has only issued substantive regulations one time, in 1975.  On December 22, the NLRB issued proposed regulations that would require all employers covered by the National Labor Relations Act (NLRA) to post a notice informing employees of their rights under the NLRA, including the right to unionize.  These proposed regulations apply to both union and non-union employers.  The NLRB is proposing that the notice be posted both by hard copy in a conspicuous place, as well as electronically, if the employer customarily communicates with its employees electronically.    Proposed sanctions include (1) finding that the failure to post as an independent Unfair Labor Practice, (2)  tolling the statute of limitations for filing Unfair Labor Practice Charges, (3) using the knowing failure to post the notice as evidence of unlawful motive in unrelated Unfair Practice Charges.  There is a 60 day comment period, after which the NLRB will probably decide how to proceed with the proposed posting requirement.

Alabama Employment Law Report  named as a top 100 Employment Law Blog.  The Delaware Employment Law Blog issued its 3rd annual list of 100 top employment law blogs.  I am pleased to announce that my blog has made the list for the 2nd year in a row.  I view this blog as an opportunity to blog on issues that interest me, and hopefully, both employers and employees.  The Delaware Employment Law Blog is an excellent blog as well, and certainly in my top 10.  I would recommend that you visit it regularly to stay informed on current issues in employment law. 

Wishing all of you a Happy New Year. 

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Last week, the 11th Circuit issued an opinion in the case of Daniel Dixon and Mary Sharon Dixon v. The Hallmark Companies, Inc., et al.  The case arose from Florida, where the Dixons, a husband and wife team, where she was the on site property manager, and he was the on-site maintenance technician.  While working at Thornwood, their third complex for the Hallmark Companies, they were provided a rent free apartment to live in adjacent to the complex's management office.  Thornwood was a recipient of Federal Funds under the Department of Agriculture's rural development program, and was subject to periodic inspections.  At one of the earlier complexes they managed, the Dixons had been informed that Hallmark's policy prohibited the display of religious items in the management office.  During one inspection, at Thornwood, the Dixon's supervisor, Christina Saunders, was also present.  She noticed that the Dixon's had hung on the wall a 26" x 50" picture of flowers with the words, "Remember the Lilies...Matthew 6:28".  Ms Dixon confirmed to Ms. Saunders that the wording was a Bible citation, and Ms. Saunders directed her to remove the artwork.  Ms. Saunders later testified that she believed that the artwork violated the Fair Housing Act and that she could lose her job if Hallmark was found to be in violation of the FHA.  Ms Saunders contacted her supervisor, who instructed her to remove the picture from the wall herself, and to make sure that the Dixons understood the fair housing laws.  A dispute arose, and Saunders ultimately fired the Dixon's.  Although the testimony was disputed, at some point in time Ms. Dixon retrieved a picture of Jesus from her apartment and held it close to Ms. Saunders, asking if it offended her.  Ms. Saunders allegedly said, "You're fired too.  You're too religious".  Ms. Saunders denied making the comment.  Saunders instructed the Dixons to vacate the building within 72 hours. 

The Dixons filed a lawsuit against Hallmark, alleging that Hallmark violated Title VII by intentionally discriminating against them, failing to accommodate their sincerely held religious beliefs and retaliating against them.  Hallmark moved for, and the trial court granted Summary Judgment, holding that even if Ms. Saunders made the statement, "You're fired too.  You're too religious", it was not direct evidence of religious discrimination.  On appeal, the 11th Circuit reversed, finding that "Direct evidence of discrimination is evidence that, if believed, proves the existence of a fact without inference or presumption....only the most blatant remarks, whose intent could mean nothing other than to discriminate on the basis of some impermissible factor constitute direct evidence of discrimination".  The statement allegedly made by Ms. Sanders was something for the jury to consider as to whether or not it was direct evidence of religious discrimination. 

Practice pointer.  According to EEOC records, the number of religious discrimination charges doubled between 1992 and 2007.  They have continued to increase over the last 2 fiscal years.  Since we are in the middle of the Holiday season for many religions, it is important to make sure that employees are not discriminated against based on their religious beliefs.  An example of this is a lawsuit filed against Belks in North Carolina by the EEOC, alleging religious discrimination when a Jehovah's Witness was terminated for refusing to wear a Santa hat.    According to the employee, she was prohibited by her religion from celebrating any secular or religious holiday, and Belks failed to accommodate her religious beliefs.

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