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

I have written in the past about violence in the workplace and the problems associated with the presence of firearms in the workplace. Last week, in the case of M&J Materials v. Isbell, the Alabama Court of Civil Appeals found that summary judgment in favor of the employer was appropriate when a worker, who had suffered a compensable on the job injury, was discharged for pointing a gun at a manager.  Thanks to one of my associates from my Huntsville office, Michael Pillsbury, for the summary of the case:

Stanford D. Isbell (Employee) injured his right wrist on June 15, 2006 while working for M & J Materials, Inc. (Employer). Sometime between April 2006 and June 2006, Employee, while still employed by Employer, brought a firearm to Employer's place of business. While showing the firearm to his co-workers (but not management), Employee aimed the firearm at a member of the management team while the manager's back was to Employee. The firearm did not discharge but this conduct made several co-workers uncomfortable and was soon reported to management who terminated Employee. Upon his termination, Employee filed suit against Employer for retaliatory discharge. Employer's motion for judgment as a matter of law was twice denied and Employer appealed. In order to prove a prima facie case of retaliatory discharge, the employee must show: 1) an employment relationship, 2) an on-the-job injury, 3) knowledge on the part of the employer of the on-the-job injury, and 4) subsequent termination of employment based solely upon the injury and the filing of a worker's compensation claim. The Court focused on the fourth element as Employee had provided evidence that the first three elements had been satisfied. Failure by the Employee to prove any of the four elements listed above was grounds for judgment as a matter of law in favor of Employer.

Employer's stated basis for Employee's termination was that Employee had brought a firearm into Employer's place of business. The Court noted that an employer's stated basis for a discharge is sufficient to defeat the fourth element listed above when the facts surrounding the stated basis are undisputed and the employee has not provided substantial evidence that a) the stated reason for termination has been applied in a discriminatory manner to employees who have filed worker's compensation claims, b) company policy does not support the termination, or c) the employer disavowed the stated reason or has otherwise admitted it is pretextual. The Court held that there was no dispute that Employee brought a firearm to Employer's place of business and aimed it at his supervisor. The Court further held that the Employer's policy against possession of weapons in Employer's place of employment was not being applied in a discriminatory manner against employees who had filed a worker's compensation claim. This matter was remanded to the trial court for proceedings consistent with the determinations of the Court of Civil Appeals.

Practice pointer.  Any time a weapon, be it a gun, knife, baseball bat or other type of weapon, is brandished in the workplace, whether as a joke or as a threat, it must be taken seriously.  There is no room for error in dealing with potentially violent employees.  In the Isbell case, termination was the correct course of action to take to protect all of the employees.

UNPAID SUMMER INTERNS

There is a great deal of discussion in the legal community about the legalities of unpaid summer interns.  It appears as if there will be a crackdown on employers who improperly use unpaid interns to take the place or supplement regular employees.  I have heard on at least 4 occasions in the last 2 weeks about my own relatives and friends who are working in unpaid positions this summer in jobs for which they should be paid.  Sirote & Permutt's next seminar is scheduled for Wednesday, May 19th from 11:30 a.m. to 1:00 p.m.  It will be presented live in the Birmingham office, and will be shown via video conferencing my Huntsville and Mobile offices.  if you are interested in attending, please feel free to contact me so we can plan accordingly.

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In my blog entry of February 28, I wrote that:  "The Alabama Senate has passed a bill, by a vote of 26-2, that would permit employees to keep legal firearms in their vehicles on company premises, so long as they are locked out of sight, such as in the glove compartment or trunk.  Electric utilities are exempted under this bill.  I will update the status of this bill as it moves through the legislature."  Although this billed had strong support in the Senate, the House voted today to reject the bill.  The vote was a voice vote, so there is no record of how the members of the House Commerce Committee voted.  With only 7 days left in the 2010 session, it appears as if this bill will not get any further consideration at this time. 

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Last week, I was invited to speak to the Sylacauga Rotary Club.  When asked about a topic, the decision was made to talk about violence in the workplace.  This is a very serious and timely topic, and should be concern to all employers and employees.  One area of workplace violence that is often overlooked is bullying.  Bullying can be a problem that may start out small, but can escalate into a much bigger problem. WebMD published an article on February 22 entitled "Workplace  bullying: How common is it?"  The article focused on accusations in England over the treatment by Gordon Brown of his Downing Street staff.  Workplace bullying includes arguments, rudeness, exclusion of co-workers and unacceptable criticisms.  It may also include cyber-bullying: the use of social networking sites to intimidate, embarrass or otherwise attack co-workers.  The Advisory, Conciliation and Arbitration Service defines bullying as "Offensive, intimidating, malicious or insulting behavior, involving an abuse or misuse-use of power through means intended to undermine, humiliate, denigrate or injure the recipient".  Mind, a mental health charity, lists physical symptoms that can result from workplace bullying, including headaches, sleeplessness, stomach problems, constant tiredness, panic attacks, mood swings, depression and suicidal thoughts.  Subjecting employees to these types of symptoms, over time, can lead to physical violence in the workplace. 

Practice pointer.  Once again, it is important for employers to have proper policies and procedures in place to identify, prevent or react to workplace violence. Training all staff, including supervisors is something that should be done on a regular basis.

ALABAMA SENATE OKS GUNS IN CAR AT WORK.  At Sirote's recent seminar on workplace violence, one of the questions asked dealt with the possession of firearms in the workplace.  The Alabama Senate has passed a bill, by a vote of 26-2, that would permit employees to keep legal firearms in their vehicles on company premises, so long as they are locked out of sight, such as in the glove compartment or trunk.  Electric utilities are exempted under this bill.  I will update the status of this bill as it moves through the legislature.

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Last Friday was a busy day in Alabama for employment issues.  Perhaps the calendar was off by a day: it should have been Friday the 13th, not Friday the 12th. 

First, the Birmingham News reported that a federal jury in Birmingham, after a 3 week trial, returned a verdict in the amount of $2.7 million against U.S. Security Associates, Inc, a security guard firm based in Georgia.    According to the article, Jamie Marks sued USSA alleging sexual harassment when a district manager repeatedly propositioned her for sex and inappropriately touched her.   Robert Gordon, writing for the Birmingham News, noted that "One occasion, Hargrove masturbated in front of Marks the lawsuit said."  Marks complained, but was ignored, in part, because Hargrove, who was having an affair with Mark's immediate supervisor,  threatened Mark's immediate supervisor, who witnessed the exposure, but lied during the company's investigation.  Interestingly, Hargrove remains employed with USSA. 

Practice pointer.  Once again, let me say that it is important to have policies and procedures in place, and to follow them!!!  The jury found, as evidenced by the high verdict, serious violations of the law by the supervisor, and the failure of the company to properly investigate and remedy the situation: the supervisor is still employed.

On January 28th, I wrote a blog entry dealing with violence in the workplace.  Tragedy struck in Alabama Friday when a female professor at the University of Alabama in Huntsville, who was just denied tenure, pulled a gun and killed 3 faculty members and wounded 2 faculty members and a staff member.  The accused shooter is a 42 year old Harvard graduate, the mother of 4, married to a geneticist and researcher who also works at UAH, and apparantly accidently shot and killed her brother in 1986.  The shooter and her husband were taken into custody.  In watching the news reports, one student interviewed said that you hear about these situations around the country, but you never expect it to happen to you.  Unfortunately, as we are again reminded, violence in the workplace does strike close to home.  My firm, Sirote & Permutt, is holding a seminar this coming Wednesday, February 17 addressing violence in the workplace,  If you are interested in attending, you can view the invitation here and make reservations to attend.  The seminar will take place in Birmingham, but will be broadcast to our Huntsville and Mobile offices. 

Practice pointer.  Violence in the workplace is a constant threat, and must be dealt with seriously.  It strikes close to home, and is unpredictable.  Companies must prepare for these situations by having the appropriate policies and procedures in place, training the entire workforce, and be forever vigilant to guard against it. 

Last November, I gave a presentation at our year end seminar addressing the H1N1 flu and pandemics in the workplace.  According to the Center for Disease Control and Prevention, in an announcement made Friday, approximately 57 million Americans have contracted H1N1 since April, 2009.  This is about 18 % of the U.S. population.  Almost 12,000 have died, and about 260,000 have been hospitalized.  Although the experts predicted otherwise, adults between 18 and 64 have been hit the hardest, accounting for 58% of the infections and hospitalizations and 76% of the deaths.

Practice pointer.   Although the H1N1 pandemic may be over, other pandemics will hit in the future.  When is unknown.  In order to keep businesses operating during a pandemic, companies must be prepared with the appropriate plan to cover for absent employees, sick employees and perhaps the interruption of normal life (quarantines, disruption of the food supply, school closings, etc.)  Now is the time to prepare by formulating proper procedures and implementing them with the workforce.

This past week, I was invited to speak to the Talladega County Bar Association and gave a presentation on Social Media, including the impact of social media in the workplace.  Interestingly, one of the cases I often refer to in my presentations is a case out of North Carolina where a volunteer fireman was discharged for conduct unbecoming a fireman because his social media site made reference to him and his wife practicing the Wicca religion, and that his wife was bisexual.  One of the attorneys in Talledega has a very similar situation, where an ex spouse allegedly posted on a social networking site that the other ex spouse practiced the Wicca religion and was bisexual.  No, I can't make these things up.  It is important to have a social media/networking policy in the workplace to protect the company, it's employees and to safeguard confidential and proprietary information.

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In 1994, Ron Artest of the Indiana Pacers charged into the stands during a NBA game being played in Detroit, and fought with players and fans.  9 different players were suspended for a total of 146 games, costing those players $10 million in salary.  5 players were charged with assault, and all 5 were found guilty.  More recently, Gilbert Arenas and Javaris Crittenton, of the Washington Wizards, were suspended for the remainder of the NBA season as the result of a dispute over a card game on a team flight which escalated into guns being brought into the locker room by both players.  Arenas will lose over $147,000 per game, while Crittenton will lose over $13,000 per game.  Too often, we hear about disgruntled ex-employees, distraught spouses or ex-spouses, or others entering places of business, courts, schools, and even basketball arenas, armed with weapons, and "going postal", killing and injuring innocent people.  Since the beginning of the year, we have heard about people getting killed in Kennesaw, Georgia and St. Louis.  A total of 5 people lost their lives, and 8 were injured.  The FBI estimates that approximately 1 million people are exposed to some form of workplace violence every year. 

Violence in the workplace has no bounds, and can impact any workplace, at any time.  The Houston Chronicle recently published an article entitled "Employers can minimize risk of workplace violence.". The article listed 8 steps that can be taken to prevent or minimize the risk of workplace violence.  These steps are:  Accept reality.  Use effective pre-employment documents and conduct background checks.  Establish policies on workplace violence.  Conduct substance abuse testing.  Develop procedures for investigating threats.  Training supervisors and employees.  Implement an employee assistance program.  Audit and improve security measures. 

In addition to the tragic loss of life and devastating injuries, violence in the workplace can result in severe financial consequences to companies when it occurs.  Employees being killed or injured.  Ongoing counseling.  Lost work time and decreased productivity.  Bad publicity, often nationally.  Workers' compensation lawsuits.  Claims for negligent hiring/retention/supervision. 

Sirote & Permutt is hosting a  seminar on Workplace  Violence on Wednesday, February 17th in our Birmingham office, and it will be simulcast to our Huntsville and Mobile offices.  If you are interested in attending, please follow this link for more information and RSVP details:  seminar  

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