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

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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Tomorrow, I will be speaking at Cumberland Law School's 18th Annual Employment Law Seminar.  The topic of my speech is "Stupid Is As Stupid Does", which relates to the many stupid things people do on social media that gets them fired, suspended, arrested or is just plain stupid.  Among the many social media snafu's that I will be talking about are:

     Ex-Congressman Anthony Weiner and his sexting which led to his resignation

     A lawyer who told a judge she needed a continuance due to her fathers death, and ended up going on vacation, posting about it on Facebook, and the judge finding out about it

     A journalist who was terminated due to a twitter post that showed her holding a sign at an Occupy Wall Street protest, when she was supposed to be covering the protest

     A German girl who posted her home address for her 16th birthday party on Facebook, forgot to mark it private, received over 16,000 RSVP's, canceled the party and had to have over 100 police at her house to keep keep the 1,600 people who showed up anyway.

     Several nurses and staff members at a California hospital who were suspended or fired for taking pictures of a 60 year old patient who had his throat slashed so severely that he was almost decapitated,  and posting the pictures on Facebook.

     The gay Rutgers University student who killed himself after his roommate took a video of him having gay sex and then posting it on line. 

     And, as reported yesterday by the TheEagle.com, the CFO of Texas A & M's athletic department making what he thought were anonymous posts on TexAgs, a popular website for Aggie fans, about the school's president, calling him a "putz" and an "unqualified puppet".  Another poster on TexAgs researched the screen name used by the CFO and found that he had previously identified himself as the CFO of the athletic department in a prior post.  Stupid is as stupid does.

Practice pointer.   Whenever posting on a social media site, one must always assume that you are not anonymous, anyone in the world may see it, and there are serious ramifications for posts that are not appropriate.  With a single click, one can be suspended, fired, embarrassed, arrested, or lead to someone else killing committing suicide..

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Immigration

     On Wednesday, October 5, Judge Blackburn denied requests made by the Department of Justice and a coalition of civil rights groups to delay implementation of HB 56 while on appeal.  Last week, Judge Blackburn upheld the vast majority of HB 56, while enjoining several provisions of the law.  The groups will be appealing to the 11th Circuit Court of Appeals, and have stated that they may seek a stay from the 11th Circuit to prevent the law from staying in effect pending the appeal.  I will post updates as they occur.

     In the meantime, there are numerous reports of students leaving schools throughout the state, workers leaving their jobs and several arrests have been made pursuant to HB 56.  Interestingly, the first arrests reported arose from a drug bust, and those arrested were from Yemen, and were not Hispanic.

NLRB

     I have previously reported that the NLRB was going to require the posting of Notification of Employee Rights effective November 14, 2011.  Because there appears to be much confusion over what businesses were covered by this requirement, the NLRB has delayed implementation of the posting until January 31, 2012.  At least 3 lawsuits have been filed seeking to prevent the NLRB from requiring this posting. 

Social Media and the NLRB

     The NLRB has been active in reviewing terminations or other disciplinary action as the result of social media posting.  I reported in February that the NLRB had contested the termination of an employee at an ambulance company.  Another social media firing case involved a BMW dealership in Chicago, where an employee posted negative comments about one of the dealership's events, when they planned to bring a hot dog cart to provide food to customers.  The salesman complained that the dealership should provide better food for it's customers.  This same salesman also took pictures of an accident that occurred when a customer was test driving a BMW and hit the accelerator instead of the brake pedal, and crashed.  These photos were posted at the same time he posted pictures of the hot dog cart.  The dealership learned of the postings the next day, and terminated the salesman.  The NLRB claimed that the posts were protected concerted activity since part of the salesman's compensation was customer satisfaction, and the postings about the hot dog cart concerned his compensation.  The NLRB administrative judge ruled that the posting about the hot dog cart was protected, but found that the posting about the accident was not, and that the dealership terminated is employment based on the accident related posting. 

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Recently, the 11th Circuit reviewed the American with Disabilities Act in  the case of Cunningham v. Nature's Earth Pellets, LLC.  Special thanks to Kelli Robinson, an associate with Sirote for this summary.  Kimberly Cunningham appealed a summary judgment in favor of her former employer, Nature's Earth Pellets, and against her complaint of discrimination in violation of the Americans with Disabilities Act (ADA).  Cunningham argued that Nature's Earth pellets wrongfully terminated her and regarded her as disabled based on her addiction to prescription drugs.  After considering the evidence, the Eleventh Circuit of the United States Court of Appeals affirmed summary judgment in favor of the employer.

The ADA provides that no covered employer "shall discriminate against a qualified individual with a disability because of the disability of such individual" in any of the "terms, conditions, or privileges of employment."  To establish a prima facie case of employment discrimination under the ADA, a plaintiff must prove that she has a "physical or mental impairment that substantially limits one or more [of her] major life activities" or is "regarded as having such an impairment."  Cunningham failed to establish a prima facie case of discrimination based on either an actual or perceived disability.

Cunningham argued that her addiction to anti-depressant medications prevented her from resolving other mental disorders, caused her to suffer about ten panic attacks a month, and interfered with her ability to breathe, concentrate, interact with others, and care for herself; but, Cunningham failed to establish that any of these impairments were or were regarded as substantially limiting. Cunningham testified that she was able to breathe and get ready for work; she performed regularly the tasks of a shipping clerk, which required her to monitor the supply of company products and coordinate deliveries of those products; and, she exercised sufficient independence of thought and concentration to withdraw from a rehabilitation facility against the advice of her physicians.

Even if Cunningham had established a prima facie case of discrimination, she failed to prove that the legitimate reason proffered for her termination was pretextual.  Nature's Earth Pellets introduced evidence that Cunningham had been terminated because of her extensive absenteeism and the number of final warnings that she had been given under the company's progressive discipline system.  To establish pretext, Cunningham was required to provide that the "proffered reason was not the true reason for the employment decision ... either by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation was unworthy of credence."  Despite Cunningham's argument that Nature's Earth Pellets had not considered terminating her for past infractions of its leave policy, the court did not find that the employer's decision to fire Cunningham this time lacked credence.  The court agreed that, based on Cunningham's history of absenteeism, Nature's Earth Pellets legitimately terminated Cunningham and, therefore, the court affirmed the summary judgment in favor of the employer.

Practice Pointer.  The Cunningham decision shows the importance of documenting problem employees.  Because there was a clear record of excessive absenteeism and progressive discipline, the Court was able to decide that there was no pretext in the decision to terminate Cunningham.

 Social Media impacts job applicants.

The New York Times published an article entitled "Social Media History Becomes a New Job Hurdle" examining the use of social media searches as a background check.  Social Intelligence, a year old company, performs internet searches that go back 7 years to look for conduct that may disqualify an applicant for the job.  Several instances of what I call stupid conduct are cited, including a women on Craigs List looking for Oxycontin, a woman posting nude pictures on an image-sharing site, instances of people making racist remarks, anti-Semitic remarks, and evidence of violent activity.  Interestingly, less than a third of the information found comes from social networking platforms like Facebook, Twitter and MySpace.  Rather, much of the negative information comes from blogs, user groups and other sharing sites.  Photographs and videotapes seem to cause the most trouble.

Practice pointer.  It is important that you control, the best you can, what you put up on the internet.  It is also important to monitor what other people post about you, whether it be in pictures, videos, or comments. 

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Immigration.  As I was driving to work yesterday, I passed a Taxi, stopped in the middle of the road, with flashers flashing, waiting to pick someone up to take them to work (I reached this conclusion by the way the person was dressed and the fact that the Taxi is there on a regular basis at the same time.  However, this was the first time I saw it in the middle of the road).  My first thought was that this would be in violation of Alabama's new Immigration Act, once it is effective, since the Taxi was impeding the normal flow of traffic while picking up a person for work at another location.  This conduct would subject both the driver and the passenger to criminal charges and possibly the forfeiture of the Taxi.  Is this what the law is supposed to cover?

Social Media.  An interesting piece in the Birmingham News this morning by Kevin Scarbinsky pointing out that the NCAA charged North Carolina with an NCAA violation by not properly monitoring several football players "social networking activity that visibly illustrated potential amateurism violations within the football program..."  Is this a sign of things to come in the workplace, if employers engage in improper conduct, use social networking sites to discuss it, and the company did not know about it? 

Class actions.  The United States Supreme Court ruled in favor of Wal-Mart, denying to certify a class action lawsuit with as many as 1.6 million women as members of the class alleging sexual discrimination.  In a 5-4 decision, with Justice Scalia writing the majority opinion, the Court found that there were too many managerial decisions being made to certify the claims as a class action.

Sexual Harassment Settlement.  Recently, the EEOC announced a $1.95 million settlement with U.S. Security Associates to resolve a sexual harassment lawsuit brought by the EEOC.  The EEOC alleged, in the lawsuit, that Mr. Hargrove, the district manager for USSA in Birmingham, sexually harassed several female employees by subjecting them to unwelcome sexual demands, demeaning gestures, inappropriate touching, and other offensive conduct.  One of these employees, Jamie Marks, had previously filed her own suit against USSA and received a $2.7 million jury verdict.  6 other females intervened in the EEOC's case.  As part of the settlement, USSA agreed to pay $1.95 million to the women.  USSA also entered into a Consent Decree, for a period of 42 months, and agreed to revise it's policies and procedures and train all staff on anti-harassment procedures.  USSA also agreed to hire a consent decree coordinator who will be responsible for monitoring USSA's compliance and submitting periodic reports to the EEOC. 

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Last November, I wrote about a case in Connecticut where the NLRB filed a complaint accusing American Medical Response of Connecticut of illegally firing an employee for posting comments on her facebook page, claiming that the posting was "protected concerted activity" under the National Labor Relations Act.  The NLRB announced that the case against AMR has been resolved by AMR agreeing to revamp its policies so they don't restrict employees rights. According to the NLRB, the settlement also included an agreement from AMR that they would not discipline or terminate employees who discussed wages and other work issues while not on the job.  The NLRA allows employees to discuss the terms and conditions of their employment with co-workers and third parties. 

There was a separate private settlement agreement reached between AMR and Dawnmarie Souza, the employee who had been terminated.  I have not been able to determine the terms of that settlement at this time.

Practice pointer.  Although the AMR case involved a union work force, employers should be aware that the NLRA covers non-union work forces as well.  Many times I hear about or see policies that restrict employees from discussing the terms and conditions of their employment, including wage information, with others.  Under the NLRA, this restriction is probably prohibited.

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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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                 On November 3, 2010, Legal Times reported that the National Labor Relations Board's (NLRB) Hartford office filed a Complaint against American Medical Response of Connecticut, Inc. alleging that the ambulance service illegally terminated Dawnmarie Souza, for posting negative comments about her supervisor on her personal Facebook page. The NLRB contends that American Medical Response wrongfully denied Ms. Souza her union representation during the investigatory review, and that the NLRB was charging that the company “maintained and enforced an overly broad blogging and internet posting policy.” The NLRB, in their press release, stated that her supervisors “threatened her with discipline because of her request for union representation….Later that day from her home computer, the employee posted a negative remark about the supervisor on her personal Facebook page, which drew supportive responses from her co-workers, which led to further negative comments about the supervisor from the employee.” Ms. Souza was fired three (3) weeks later.

Today, Molly DiBianca, in her blog, The Delaware  Employment Law Blog, reported that an employee and her supervisor were Facebook friends.  After the employee filed a charge of discrimination with the EEOC, the supervisor unfriended the employee.  When the employee later added a claim for retaliation, one of the facts supporting the claim was the fact that the supervisor unfriended her.  As Ms. DiBianca wrote, "The employee felt the "unfriending" was the equivalent of what getting the “cold shoulder”—just in a virtual or electronic context.  Although the cold shoulder is not the traditional type of workplace retaliation, it can constitute an adverse employment action under the Burlington Northern standard—especially when it’s one of several “bad facts” tending to show that the employee was singled out after filing a complaint."

Practice pointers.  With the NLRB entering the social networking fracas, there is one more governmental agency for employers to be concerned with when dealing with social networking in the workplace.  When considering whether to implement or change a social networking policy, employers now need to consider the concept of "protected activity" as viewed by the NLRB. 

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Recently, a trial court in New York found that the Facebook and MySpace sites of a plaintiff in a personal injury case were discoverable.  In Romano v. Steelcase, Ms. Romano fell off her chair at work and filed a lawsuit claiming that she was severely injured and had multiple surgeries on her neck and back.  She sued Steelcase, alleging that the chair she was sitting in was defective.  Romano had profiles on both Facebook and MySpace that were not publicly available and were set up as "private" pursuant to the sites' privacy settings.  Steelcase subpoenaed the information from these sites, Facebook objected, and Romano refused to consent to the release of the information.  Steelcase argued that what was publicly available on Facebook and MySpace was inconsistent with her claims in the lawsuit, and sought access to her current and past pages, including any deleted pages, even if limited to her "friends" or "connections".  The trial court relied on a decision from Canada, that held that "To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial."  The Judge in the Romano case examined the language in the privacy policies of both Facebook and MySpace, which state "this information may become publicly available."  The court wrote that:

     "Thus, when Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings.  Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist.  Since Plaintiff knew that her information may become publicly available, she cannot now claim that she had a reasonable expectation of privacy.  As recently set forth by commentators regarding privacy and social networking sites, given the millions of users, "in this environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking."

Practice pointer.  As expected, there is often useful information available on social networking sites, such as Facebook, MySpace, Linkedin, etc, for all parties involved.  Individuals should not post anything on their sites that they expect to maintain as private: it may not happen. 

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