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

This past weekend was an exciting one for me.  I returned to my home town of Lakewood, New Jersey (yes, I am a Yankee who stayed in Alabama) where I graduated from high school in 1976.  I had the honor and privilege of being inducted into the Lakewood High School Athletic Hall of Fame.  I played football and threw the discus while in high school.  My school was extremely diverse and I participated in sports with African-Americans, Caucasians, Hispanics, Cubans, Estonians,  Jews, Catholics, and more.  I was fortunate to be exposed to a cross section of society at an early age.  So, what does this have to do with Title VII?

For many years, there has been a problem with racism in the professional soccer leagues all around Europe.  CNN published an interesting article this past November, pointing out that the racism is not only between players, but also comes from fans.  From throwing bananas at  a Brazilian player in Russia to Nazi salutes, there were 195 documented incidents of racist and discriminatory behavior from September 2009 through March 2011. 

In American football, a court in New York is allowing a lawsuit filed by 2 massage therapists to proceed against Brett Favre and the New York Jets.  The therapists allege that they were sexually harassed by Favre who sent them sexually suggestive text messages.  They also allege that they were fired after complaining to the Jets about the text messages.

Similar conduct has recently occurred in the United States.  Just last week, during the National Hockey League playoffs, the Boston Bruins lost in overtime to the Washington Capitals in the 7th game of their series.  The winning goal was scored by an African American player.  CNN reported on the outbreak of racist comments across the internet by Boston fans.  This has led to investigations at some schools in New England concerning students who may have posted racist remarks, including at least 5 students (3 of whom are athletes) at Gloucester High School and at least one student at Franklin Pierce University. 

Last week also saw an anti-Semitic incident involving baseball.  In New York, Delmon Young, an outfielder with the Detroit Tigers, who was born in Montgomery and played for the Montgomery Biscuits,  was arrested after an altercation with a number of men outside a hotel.  Young had been drinking and has been accused of yelling Anti-Semitic remarks at them.  Young was suspended for 7 games without pay.  With a salary in excess of $6 million this year, he will lose more than $240,000.  He was also ordered to have a psychological and physical evaluation by Major League Baseball.    Although relatively rare, there have been other similar incidents in baseball:  In 1993, Marge Schott, the ex-owner of the Cincinnati Reds was fined $25,000 and suspended for 8 months after making anti-Semitic and racist comments, and Umpire Bruce Froemming was suspended for calling a female administrator for umpires a "Stupid Jew Bitch" in 2003. 

Concerning activities that may be in violation of Title VII, discrimination or harassment based on sex, race, color,gender, religion and national origin, professional sports seems to be a microcosm for the rest of society.  On a regular basis, charges continue to be filed with the EEOC alleging violations of Title VII.  Lawsuits are regularly filed alleging violations of Title VII.  Judgments are regularly returned against employers for violating Title VII..  Employees are regularly fired for violating Title VII.  In just the past several weeks, a Taco Bell in North Carolina paid $27,000 to resolve a religious discrimination claim filed by the EEOC, a Little Rock, Arkansas real estate company settled a class action race discrimination claim for $600,000, and a Burger King restaurant in Oregon agreed to pay $150,000 to settle a sexual harassment claim where a teen employee was sexually harassed by her supervisor at her first job.

Practice pointer.  Employers must continue to educate and train ALL employees, from top to bottom, as to what is prohibited by Title VII.  Complaints must be taken seriously and properly investigated.  Appropriate disciplinary action, up to and including termination, must be taken once the investigation is complete.  These cases are expensive, legal fees, settlements/judgments and lost time dealing with the allegations.  Morale is decreased when harassing conduct occurs in the workplace.  And employers don't want to be named in an EEOC press release or on the front page of the local newspaper. 

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Many of you have either heard of or followed Coach Bobby Petrino and his escapades over the last several weeks.  He was terminated from his employment as head coach at Arkansas and his conduct can be a lesson for many in the workplace.  As Birmingham News columnist Jon Solomon wrote "Petrino hired his mistress, Jessica Dorrell, over 158 other applicants to do NCAA eligibility work, paid her $20,000 under the table, and lied to his boss about their relationship.  Try doing that at your job and see how long you'll be employed."  I have often said that anyone within an organization can subject the organization to embarrassment, lawsuits, adverse publicity and adverse consequences, from the highest (President/Head Football Coach) to the lowest level employee.  This is a perfect example.  Arkansas knew or should have known what it was getting with Petrino:  someone who had problems at other jobs and may have had a history of dishonesty.  He was paid millions of dollars, and was successful as a football coach, taking the Arkansas program to heights it has not seen for decades.  Through his selfishness, he left Arkansas no choice but to terminate him for cause.  Other issues need to be addressed, such as what to do with the 25 year old mistress?  Will any of the 158 applicants sue Arkansas for not hiring them?  Did Dorrell report the $20,000 as income?  What impact will Petrino's conduct have on his wife and 4 children?  Will he find another job?

As with many situations, the cover-up after the motorcycle accident caused additional problems.  Originally, Petrino reported that he was the only one on the motorcycle.  A lie.  He denied his relationship with Dorrell.  A lie.  We will never know, but if Petrino came clean with his boss after the wreck, would he still be the head coach at Arkansas?  His chances certainly would have been better if he had told the truth.

Practice pointers.  All employers must be aware that problems can occur with anyone at the company.  When hiring someone, know who you are hiring, and be aware that prior problems may appear again.  When a problem does occur, it is important to do a timely, thorough and complete investigation, and take the appropriate remedial measures as soon as possible. 

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A federal court jury comprised of 8 women and 4 men recently awarded $401,090.60 to a former Lawrence County payroll clerk after a week long trial.  Beronica Warren began working for the county in January, 2007,   Peggy Dawson became the county administrator after Warren was hired, and they had a strained relationship.  Warren filed an EEOC charge alleging that she was harassed and discriminated against by Dawson in March, 2008.  The 4 acts of retaliation presented to the jury were:  1.  The vote by the Commission to investigate the claim filed by Warren and then disciplining her; 2.  The investigation itself; 3.  The hearing the 2 county commissioners appointed to give her based on her charge; and 4.  Her termination.  Testimony included a statement by a former county commissioner who told Warren that "we are going to fire your ass for filing that charge" and taunted her as she was leaving the parking lot after packing her possessions, that the 2 commissioners appointed to investigate the EEOC charge never spoke to Warren, Warren had no documentation in her personnel file indicating that her job performance was poor (one of the reasons given for termination was poor job performance),  that Warren brought a tape recorder to the office to record Dawson, but Dawson found out about it and would come to her office and stare at her, and that newspaper articles about her termination caused her financial hardship and emotional distress.  A fifth count alleged she was not paid overtime.  After asking for $403,000 in closing arguments, the jury awarded her $450.64 in unpaid overtime,  $70,640 in back pay, $73,000 for the retaliation claim concerning the vote to investigate, $90,000 for retaliation concerning the investigation, $83,500 for retaliation for the hearing, and $83,500 for the termination.  Still pending before the court are claims for reinstatement or front pay and attorneys fees which may be as much as $400,000. 

According to the attorney for Warren, the county introduced no exhibits and the 4 commissioners/former commissioners who testified gave 4 separate reasons for the termination. In his opinion, the county could not articulate a legitimate business reason for the adverse employment action taken against Warren. 

Practice pointers.  Whenever an employer makes the decision to take an adverse employment action, including termination,  against an employee who files an EEOC charge, it must be done with caution.  The investigation must be done properly.  Personnel files must be reviewed.  The individual (s) making the decision must be careful about what is said.  During the discovery stage and at trial, if there is more then one decision maker, their testimony should be consistent.  Documentation is also very important.

HUD to pay over $60 Million to settle discrimination claim.  The Department of Housing and Urban Development (HUD) recently settled a case filed against it in New Orleans alleging that HUD discriminated against African-American homeowners after Katrina as part of the Road Home program.  The suit alleged that the formula used by HUD discriminated against African-Americans.  Road Home program data show that African-Americans were more likely than whites to have their Road Home grants based upon the much lower pre-storm market value of their homes, rather than the estimated cost to repair damage.  The estimated value of the settlement is in excess of $60 million.

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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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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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