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

Earlier this week, the EEOC issued a press release emphasizing that: 

1.  Private sector bias charges hit an all-time high in FY 2011.  A total of 99,947 charges of employment discrimination were filed in 2011.  Retaliation allegations totaled 37,334, Race discrimination charges tototaled 35,395, Disability discrimination charges totaled 25,742 and Age discrimination totaled 23,465.  In the first full year of the Genetic Information Nondiscrimination Act (GINA), 245 charges were filed. 

2.  A record amount of money was recovered in FY 2011.  The EEOC recovered $455,600,000 in monetary relief through the administrative program and litigation.  This is $51,000,000 more than FY 2010.  The EEOC filed more than 300 lawsuits , and litigation efforts resulted in $91,000,000 of relief.  ADA claims produced the largest increase in monetary relief of all the statutes, with $103,400,000.  This was a 35.9% increase from FYI 2010.

3.  The pending inventory of charges was reduced for the first time in 10 years.  In FYI 2011, the EEOC resolved 112,499 charges, leaving an inventory of 78,136 of pending charges. 

Practice pointer.  Employers must continue to educate their workforce as to the employment laws that apply, and the consequences of violating them.  There seems to be more publicity about EEOC activities, and I anticipate this year will continue to show a steady, if not greater, number of charges being filed with the EEOC.  Employers must take any charge seriously, and respond in an appropriate manner, which may include involving legal counsel.  For those who remember Hill Street Blues, as Sgt Esterhaus would say in every show, "Hey, let's be careful out there". 

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The Atlanta Journal Constitution reported today that a football recruit will not be attending the University of Georgia.  Chester Brown, a 6'5" 340 pound offensive lineman is the son of Samoan immigrants.  Although his mother insists that he was born in the United States, which would make him a citizen, it appears as if Brown is not able to provide documentation proving where he was born.  The Georgia Board of Regents adopted a policy in October, 2010 which states that an undocumented student cannot take the place of an "otherwise academically qualified Georgia resident who has been turned away because of capacity constraints".  This policy was adopted after a Kennesaw State student was arrested for a minor traffic incident, and it was discovered that she was an undocumented Georgia resident, but had been paying in-state tuition.  What would happen if this occurred in Alabama?

As I have written in the past, employers with state or other public entity contracts are required to use E-Verify.  I have spoken with a number of such employers, and they are being provided paperwork by the state, counties and cities that needs to be completed before the contract can be entered into, no matter how big or small the contract amount.  This paperwork includes "Affidavit of Alabama Immigration Law Compliance by a Contractor or Grantee" and an "Affidavit of Alabama Immigration Law Compliance by a Subcontractor or Grantee".  Some entities are requiring that the employer provide a copy of the Memorandum of Understanding concerning the use of E-Verify.

Social media update.  For those of you in north Alabama, I will be presenting a talk on February 29 on the impact of Social Media in the workplace.  The seminar, put on be Sterling Education Services, Inc. will be at the Marriott Huntsville.  For more information or to register for this seminar, visit the Sterling Website. 

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Cheryl Perich was a teacher at the Hosanna-Tabor Church school in Michigan.  She taught mostly secular subjects, but also taught one 45 minute religious class and attended chapel with her class.  She was "called" a teacher by the school, completed religious training and was a "commissioned minister" at the school.  She was diagnosed with narcolepsy, and threatened to file a lawsuit against the Church under the Americans With Disabilities Act.  She claimed that she was terminated in retaliation for threatening to file the lawsuit, while the school said she was terminated for insubordination and failure to follow internal dispute resolution procedures.  In a unanimous decision, the Supreme Court found a "ministerial exception" to employment discrimination laws, holding that the courts stay out of the way of the hiring and firing of clergy.  Chief Justice John Roberts wrote that "When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us...The church must be free to choose who will guide it on its way."  Justice Roberts further wrote that:  "The interest of society in the enforcement of employment discrimination statutes is undoubtedly important...But so, too, is the interest of religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission."  The Court found that the ministerial exception is not a jurisdictional bar to a lawsuit, but an affirmative defense.  The Court also made it clear that there was not a rigid formula for deciding which religious employees would qualify for the ministerial exception.  Future cases will be need to be decided by the courts based on the specific facts of each situation. 

Practice pointer.  This lawsuit was brought on behalf of Ms. Perich by the EEOC.  The Obama administration argued in support of Ms. Perich.  In rejecting the EEOC's arguments, Justice Roberts also wrote that reinstating Ms. Perich "would have plainly violated the church's freedom", and "would operate as a penalty on the church for terminating an unwanted minister:"  Justice Thomas wrote a concurring opinion, as did Justice Alito, who was joined by Justice Kagan.  A copy of the entire 39 page opinion can be found at the NYTimes. 

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Happy New Year to everyone.  2012 begins with more weird stuff in the employment world, which is actually pretty normal. 

Lady Gaga sued for overtime.  In New York, Lady Gaga has been sued by her ex-personal assistant for overtime.  Jenifer O'Neill sued Mermaid Touring, Inc, Lady Gaga's company, on December 14, 2011, seeking almost $380,000 in unpaid overtime for 4 weeks in 2009 and 52 weeks in 2010 and 2011.  The allegations in the suit are Ms. O'Neill was responsible for attending to Lady Gaga's needs "not only in her home, but also during her travels for her global concert tours, from city to city throughout the world, at locales, including stadiums, private jets, fine hotel suites, yachts, ferries, trains and tour buses. Plaintiff was always behind the scenes, and figuratively, if not literally, always at her side."  Her job duties included confirming Lady Gaga's schedule, reviewing and reconciling her credit card statements, "ordering meals and ensuring that they were correctly prepared and served at specific times; maintaining the principal's personal supplies, ensuring the availability of chosen outfits; ensuring the promptness of a towel following a shower; and serving as a personal alarm clock to keep [Lady Gaga] on schedule".  Ms. O'Neill is alleging that she was on call 24 hours a day, seven days a week:  she was responsible for "maintaining [Lady Gaga] on her desired schedule from the earliest waking hour, for being responsive to the slightest need throughout the day, and for addressing spontaneous, random matters in the middle of the night."    O'Neill was paid a salary of $75,000 per year.  This lawsuit sheds some light into the glamorous life of a pop star, and it will be interesting to see how it is resolved.

President Obama announces 3 recess appointments to NLRB.   On a more serious note, the NLRB issued a press release on January 4 announcing President Obama's intent to recess appoint Sharon Block(a democrat), Terence Flynn(a republican) and Richard Griffin(a democrat) to fill the 3 vacant seats on the NLRB.  Ms. Block worked for Senator Kennedy, was a senior attorney at the NLRB for a number of years, and currently serves as Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor.  Mr. Flynn is currently serving as Chief Counsel to NLRB Board Member Brian Hayes.  Mr. Griffin is General Counsel for the International Union of Operating Engineers.  Since 1983, he has served on the board of directors for the AFL-CIO Lawyers Coordinating Committee.

Practice pointer.  These appointments will give the Board it's 5 members, 3 democrats and 2 republicans.  Over the past year, the NLRB has been very active and, in my opinion, very pro-Labor.  I anticipate these recess appointments will be contested, but if they stand, the NLRB will continue to be active and pro-Labor.

Did ICE Mistakenly Deport a 14 year old runaway?  WFAA in Dallas broke a story this week about 14 year old Jakadrien, a 14 year old who ran away from her Dallas area home in the fall of 2010.  She ended up in Houston, where she was arrested by police for theft.  She provided the police a fake name, and when the name was run through the computer system, it was the name of a 22 year old illegal immigrant from Colombia, who had outstanding warrants for her arrest.  ICE was called in, and although she spoke no Spanish, she was deported to Colombia.  Upon her arrival in Colombia, she was provided a work card by the government and released.  U.S. authorities got involved, and asked the Colombian police to pick her up.  She is currently in a Colombian detention facility, and the Colombian government won't release her at this time. 

Practice pointer.  Although this story is just breaking and a lot of information is still sketchy, questions are being raised over how and why ICE deported a 14 year old U.S. citizen to Columbia.  You can read more about it at WFAA, NY Daily News, andUSA Today.

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