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

Effective March 8, 2013, the Department of Labor has new updated notice and certification forms and a new poster requirement concerning the FMLA.  The notice and certification forms are no longer available as part of the regulations, but rather will be on the DOL website.  Also, there are new updated forms concerning serious injury or illness of a covered veteran.  The new poster can be found here, and the new forms can be found here. DOL's new regulations also reference the Genetic Information Nondiscrimination Act of 2008 (GINA).  Employers can disclose genetic information or family history obtained by the employers as long as it is consistent with the FMLA. 

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HB 56/Alabama's Immigration Law.  I don't want to sound like a broken record, but....Sunday April 1 is the day HB 56 requires all employers in Alabama to use E-Verify for new employees.  This is in addition to the use of I-9's.  Employers that knowingly hire or continue to employ unauthorized aliens are subject to harsh penalties, including the suspension or revocation of business licenses.

ADEA.  The EEOC has issued it's Final Rule on Reasonable Factors Other Than Age under the ADEA.  According to the EEOC press release, "The final rule clarifies that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, unless the employer can show that the policy or practice is based on a reasonable factor other than age."  The Final Rule will be important for companies defending ADEA claims when the defense is that the decision made in regard to an individual over 40 was not predicated on age, but rather a reasonable business decision.

Social Media.  I hate auto-correct on my Blackberry, as do many users of Iphones, Droids, etc.  Recently, WSBTV in Atlanta reported that the West Hall High School and West Hall Middle School were put on lock down after  a student sent a text message that read "gunman to be at west hall."  The message was supposed to be "gunna be at west hall", but the auto-correct feature changed the message.  The student sending the message was not charged after police discovered what happened. 

FMLA.  The United States Supreme Court, in a 5-4 decision, found that states are not subject to the self-care provisions of the FMLA.  In 2003, the Court found that states could be sued for damages for violations of the family care provisions of the FMLA, since the family leave policies in place with states either discriminated on the basis of sex or were administered in a way that discriminated on the basis of sex.  Under the self-care provisions of the FMLA, there were no policies that discriminated on the basis of sex, or were administered in a way that discriminated on the basis of sex.  Thus states are immune from damages under the Fourteenth Amendment. 

GINA.  Effective April 3, 2012, the EEOC has new record keeping requirements under the Genetic Information Nondiscrimination Act of 2008.  GINA applies to employers with 15 or more employees, employment agencies, labor unions and federal sector employers.  The new rule requires all employment and personnel records to be kept in the same manner as required under Title VII and ADA.  Records containing medical or genetic information should be segregated from other personnel records and access limited to those with a business need to see them. 

Spelling out numbers.  Oftentimes, lawyers are criticized for all the legalize that appears in documents.  One of the areas of 'legalize' is the fact that lawyers almost always spell out numbers.  Every now and then, a lawsuit demonstrates why this is done.  Michael Fox  blogged last week about a lawsuit that went to trial in London.  The suit is focused on whether a currency trader was to be paid 2.4 million rand or 24 million rand, a difference of $980,000.  JPMorgan is arguing that it was a typographical error in the numbers.  The numbers were not spelled out. 

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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 EEOC continues to pursue lawsuits against employers for sexual harassment as well as other claims.  In Alabama, the EEOC announced a settlement with Jack Marshall Foods, Inc., a KFC franchisee based out of Tuscaloosa.  The EEOC filed it's suit in March, 2009, alleging that sexual harassment was taking place at the KFC restaurant in Monroeville.  The suit claimed that that Jack Marshall tolerated male employees openly describing sexual desires and interests with female employees and engaged in unwelcome sexual conduct including touching and groping.  Jack Marshall agreed to pay $1.05 million to settle the lawsuit brought on behalf of 19 female employees.  It should be noted that at least 3 of the female plaintiffs were teenagers at the time the harassment occurred.

In Kansas, the EEOC filed suit on May 20 alleging that an 18 year old server at a Cactus Grill restaurant was sexually harassed by one of it's managers.  The EEOC press release states that "an assistant manager at the restaurant asked the server for sex, touched her, and made unwelcome sexual advances toward her.  The harassment was so intolerable that the server was forced to quit her job, amounting to an unlawful constructive discharge."  The press release also quoted the director of the St. Louis District office as saying "Sexual harassment in the workplace is always wrong, but harassment of teenage workers, who are often in their first 'real' job, is even more egregious... Employers must provide safe, harassment-free workplaces for all of their employees, including teenagers". 

Practice pointer.  The EEOC remains active in Alabama, and around the country, in filing suits and settling claims of harassment.  Both these cases involve teenagers: it should be noted that the EEOC has a specific web site dealing with teenagers in the workplace, In light of the fact that many businesses hire teenage summer help, now is the time for employers to make sure that their entire workforce, including the summer labor force, is trained on harassment and discrimination in the workplace.

GINA UPDATE.  In what appears to be the first publicly released complaint filed under the Genetic Information Nondiscrimination Act, Pamela Fink filed suit against her employer in Connecticut alleging she was fired as the result of a positive test for BRAC2, the breast cancer type 2 susceptibility protein.  According to Business Insurance, when she received the positive result, Ms. Fink took medical leave for a double mastectomy.  The day before her second and final surgery, she received a mid year review that was "negative and scathing", was fired, and told her position had been eliminated.  In a related article by Judy Greenwald with Business Insurance entitled "Discrimination claims rising in wake of genetic bias law", the following was written : “I think the EEOC, under the current administration, is being very proactive” in pursuing claims under its jurisdiction, said Daniel J. Burnick, a shareholder with law firm with Sirote & Permutt P.C. in Birmingham, Ala. In addition, more employees “are looking to the EEOC and/or the court system in an attempt to either protect their jobs or receive compensation should they lose their jobs.”

Practice pointer.  I expect there to be more claims filed under GINA as more people become aware of it.  As you can tell from Ms. Fink's complaint, timing is very important:  the fact that she was reviewed and fired while on medical leave is suspect, to say the least. 

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Congress's latest employment law becomes effective on Saturday, November 21, 2009.  The Genetic Information Nondiscrimination Act (GINA) is designed to ban the misuse of genetic testing in the workplace.  GINA prohibits employers from requesting genetic testing or considering someone's genetic background in hiring, firing, disciplining or promoting.  Insurance companies will also be prohibited from requiring genetic testing, and cannot use genetic history, such as a history of heart disease or cancer to deny coverage or set the amount of premiums or deductibles.  Genetic information includes not only the individual's medical history, but also that of his/her family.  The law applies to health insurers, but not life insurers.  GINA applies to any employer with 15 or more employees.  The EEOC has released the revised "Equal Employment Opportunity is the Law" poster, which is mandatory for all covered employers. All federal posters need to be replaced to include GINA.

Practice pointer.  GINA is Congress's most recent employment law to take effect.  Like most other laws, the EEOC's interpretation may be different, and much more expansive, than the courts will ultimately interpret GINA to be.  For now, it is important for employers who are covered to replace their EEOC posters, and review and revise all forms/applications, etc. to make sure that the paperwork is in compliance with GINA.   The New York Times published an article addressing GINA on Monday, November 16 discussing the law and it's impact on the workplace. 

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