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

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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The NLRB has pushed back the deadline from January 31, 2012 to April 30, 2012 the deadline to implement the required posting of the Notice of Employee Rights pursuant to the NLRA.  The delay came days after Judge Jackson, the District Court Judge assigned to the case in the D.C. Circuit, stated in oral argument that the case is a complicated one and asked the Board to delay the implementation because she needs more time to examine the issues involved.  A second lawsuit was filed in South Carolina, and argument is scheduled for January 11, 2012. 

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As we prepare to bring to an end 2011, I want to wish all of you a Merry Christmas, Happy Hanukkah, Happy Holidays, and a Happy and Healthy New Year.  2012 will continue to bring many changes in the employment arena, including the following:

Immigration Law: HB 56.  A reminder that any business that has contracts with the State of Alabama must begin using E-Verify effective January 1, 2012.  All employers are required to use E-Verify on or before April 1, 2012.  At this time, the 11th Circuit Court of Appeals has scheduled argument on the appeal of Judge Blackburns' orders enjoining parts of HB56.  In light of the Supreme Court's decision to accept an appeal of Arizona's law, Alabama has asked the 11th Circuit to stay the appeal, while the Plaintiffs, including the Department of Justice, have asked to go forward.  I will continue to post on my blog as the case winds it way through the courts. 

NLRB.  A reminder that the NLRB is requiring a new poster to be posted in the workplace effective January 31, 2012.  I summarized the poster requirements in a prior blog entry.

11th Circuit issues 2 new discrimination decisions.  In August, 2010, I posted an entry entitled "The Case that Never Ends".  Tyson was sued by Mr. Hithon, a black employee, alleging that the use of the word "boy" by his supervisor constituted racial harassment.  The court previously held in favor of Tyson.  Just last week, the 11th Circuit revisited this case, and reversed the prior decision, awarding Hithon $364,000.  Interestingly, as the Republican Presidential primary season officially starts, one of the issues being discussed is judicial activism.  The Atlanta Journal Constitution reports that the prior decision had been condemned by 11 civil rights pioneers, who had filed a brief with the court linking the use of the word "boy" to slavery.  The court found that the use of the word "boy" in and of itself was not discrimination, but the facts surrounding the use of the word "boy" in this case was sufficient to find in favor of Mr. Hithon. 

The 11th Circuit also issued a decision 2 weeks ago, in the case of Glenn v. Brumby, addressing harassment of an individual diagnosed with gender identity disorder.  Mr. Glenn was born a biological male, and subsequently diagnoses with gender identity disorder.  He/she began working for the Georgia General Assembly's Office in 2005 as a male, but in the fall of 2007 advised his/her supervisor that he/she was undergoing a gender transformation and would be coming to work as a female.  Glenn was subsequently discharged, and filed a claim alleging sex discrimination and discrimination based on her medical condition.  The trial court granted summary judgment in favor of the employee on the sex discrimination claim, and in favor of the employer on the medical condition claim.  On appeal, the 11th Circuit reversed the summary judgment in favor of the employer, and found that all persons, whether transgender or not, are protected from gender based discrimination by government agents, and that discriminating against someone on the basis of gender non-conformity constitutes sex based discrimination.  It should be noted that  the supervisor testified that "he fired Glenn because he considered it inappropriate for her to appear at work dressed as a woman and that he found it unsettling and unnatural that Glenn would appear wearing women's clothing."

Theft by Employees.  2 articles caught my attention today concerning theft by employees.  This continues to be a problem for all employers.  First, Al.com reports that Walter Skrobak, the former head security guard at the McCalla OfficeMax Powermax Facility,  pleaded guilty to stealing over $600,000 of computer software.  Between October 2008 and November 2010, he stole at least 1,600 units of computer software and sold them, via Pay Pal, to a party residing out of state for nearly $400,000. 

In New York, 3 employees stole almost $58,000 of lingerie from a Victoria's Secret Store.  An internal investigation reveals that the thefts occurred over the last 6 months.  Incredibly, one of those arrested stated that "My heart dropped when I saw that figure on the Internet...They exaggerated a lot, trust me.  They must have charged like full price for everything, and doubled the sales tax".  He admits that he only pocketed $800 during the 6 month crime spree. 

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The National Labor Relations Board currently consists of 3 members: 2 Democrats and 1 Republican. At the present time, 2 seats are vacant.  The Republican member has threatened to resign so that there would not be a legal quorum, but has not done so.  This past June, the NLRB published proposed amendments, which would make it quicker and easier for unions to organize in the workplace.  On November 30, the NLRB, on a 2-1 vote along party lines, approved a Resolution to proceed with the new rules.  The Resolution is not the law, but is a summary of what will soon be published as the Final Rules.  In light of the fact that the Republican member's term expires on December 31, causing the NLRB to lose the ability to have a quorum, I anticipate that their will be a hard push to publish the Final Rules before year end.  The changes that will speed up the union election process are:

     Pre-election hearings can be limited by the hearing officer to whether a question of representation exists.  With limited exceptions, this means that disputes concerning voter eligibility would be determined after the election.

     The hearing officer will have to give express permission for parties to file post-hearing briefs.

     The right to seek review of any rulings made concerning the appropriate bargaining unit and related items will not be allowed until after the election has taken place and the ballots counted.

     The current regulations which provide a minimum of 25 days from the time the regional director directs an election to the time of the election itself, will be rescinded.  This time period provided an opportunity for the NLRB to rule on a request for review if filed.

     Permission to directly appeal to the NLRB will require a showing of "extraordinary circumstances".

     The NLRB's review of a regional director's or judge's resolution of post-election disputes will be discretionary after both stipulated and directed elections. 

The NLRB has posted an Explanation of Resolution on it's website. 

Practice pointers.  With private sector union membership at an historically low rate of 6.9%, labor organizations are pushing these changes to speed up the election process to deny employers the opportunity to educate their workforce as to the pros and cons of unionization. For employers, now is the time to determine if there is any discontent in the workplace, and if so, try to address the issues.  If approved, which I think they will be, unions will once again begin campaigning to unionize as many workplaces as possible.   With the Republican member dropping off the Board as of December 31,the NLRB will not have enough members to obtain a quorum, and  the Democratic majority expects to vote before year end. 

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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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November 14, 2011 is the day that employers covered by the National Labor Relations Act (NLRA) will be required to post a notice regarding employee rights to unionize.  The NLRA applies to both unionized and non unionized workplaces, with certain exceptions.  The National Labor Relations Board (NLRB) announced its final rule related to the Notification of Employee Rights under the NLRA.  The posting, which will be available on or before November 1 on the NLRB website, includes language setting forth the rights of employees under the NLRA, including the right to organize a union to negotiate with the employer concerning wages, hours and other terms and conditions of employment, discuss wages and benefits with co-workers, and their right not to join or remain a member of a union.  Language is also included concerning actions the employer is prohibited from taking, including questioning employees about union support or activity in a way that discourages employees from engaging in that activity, threatening to close a workplace if employees choose a union to represent them, and promise or grant promotions or pay raises to discourage or encourage union support.  Finally, the notice includes language explaining what unions cannot do under the NLRA, including threatening or coercing employees in order to gain support for the union or take adverse action against employees because they have not joined or do not support the union. 

The rule requires the following of employers who are covered by the NLRA:

     Employers must post and maintain the NLRB notice in a conspicuous place and to take reasonable steps to ensure that the notices are not altered, defaced or covered by any other material, or are otherwise unreadable.

     If the employer customarily posts notices to employees regarding personnel rules and policies on an Internet or intranet site, the NLRB's rules must also be posted on such sites.

     In a workplace where 20% or more of the workforce is not proficient in English and speaks a language other than English, the employer must provide notice in the language that such employees speak.  The NLRB has offered to provided translations of the notice.

     In a workplace that includes two or more groups constituting at least 20% of the workforce who speak different languages, the employer must provide the notice in each such language.  The NLRB has offered to provide translations of the notice.

    Failure to post the notice may be deemed an unfair labor practice. 

Practice pointers.  Once again, this is a reason to train supervisors about the notice, the employer's position on unionization, and how and when these issues can be communicated with employees.  The employer is permitted to post its position concerning unionization, but this should be done carefully to comply with the NLRA.  It is important to note that THE NLRA APPLIES TO BOTH UNION AND NON UNION workplaces, and I anticipate that this rule will have a significant impact on workplaces that are union free or partially unionized. 

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