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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EEOC

As we are quickly approaching September 30, the end of the Government's fiscal year, I am reminded of a post I made last year about this time. On October 9, I wrote that the EEOC had filed 9 suits in Alabama and:   "Based on the timing of these lawsuits, it is difficult to determine if this will be a long term trend based on a change in EEOC philosophy, or if it was a last minute rush to file the suits before the end of the fiscal year, which ended September 30, 2009.  Is it possible the EEOC has quotas for the number of lawsuits it files?"  We will find out over the next couple of weeks if the EEOC again rushes to file a number of lawsuits before September 30, and if they will cover the various claims they have jurisdiction over. 

Immigration

A reminder that ICE has published a final rule, that became effective on August 22 concerning how employers can sign and maintain I-9 forms electronically.  The rule allows employers to maintain I-9's in paper form, electronically, or a combination of the two.  The rule provides that the electronic system must provide an audit trail every time an I-9 is created, completed, updated, modified, altered or corrected, and the person performing the action.  The electronic system must be able to provide confirmation to the employee if requested.  Finally, the employer has 3 days from date of hire to complete the verification section of the I-9 (the "Thursday Rule": start work on Monday and complete form by Thursday).  To avoid potential claims of discrimination, the I-9 forms should not be maintained with the personnel files.

In another one of those "DUH" moments, the New York Times reports that a successful restaurant owner in San Diego is facing up to 30 years in jail, millions in fines and the seizure of his restaurant if convicted of illegally hiring 12 undocumented immigrants.  The article notes that the Obama administration implemented a policy in April, 2009 taking a tougher stance on employers who hire illegal immigrants, In 2009, ICE conducted less then 1,500 investigations, while conducting over 2,000 investigation during the first 7 months of 2010.  The Bureau of Labor Statistics estimates that 1.4 million of the 12.7 million workers in the restaurant business are foreign born, and are in the United States both legally and illegally.  The Pew Hispanic Center, in 2008, estimated that about 20% of the 2.6 million chefs, and 28% of the 360,000 dishwashers, were in the US illegally.  Mr. Malecot, the owner of the French Gourmet restaurant in San Diego, employs about 120 full and part time workers.  In 2006, Mr. Malecot's business catered, for free, a benefit honoring a veteran returning from Iraq.  Since the dinner was held at an Air Force base, heightened security measures resulted in identity checks showing that one of the workers was an Algerian immigrant working illegally.  In 2008, ICE officials conducted an armed raid on the business, seizing computers, paperwork and arresting 12 workers.  Since being indicted, the business has lost at least $500,000 in catering jobs, which make up approximately 70% of the restaurant's revenue.  In June, the owner of two restaurants in Maryland was ordered to forfeit more than $700,000 in assets, and faces up to 10 years in prison after pleading guilty to hiring and harboring illegal immigrants.  And closer to Alabama, in Mississippi, another restaurant owner pleaded guilty to hiring illegal immigrants and received a sentence of 1 year in prison and faces fines of $600,000. 

Pandemic policy

Last year, the world was abuzz with concerns over the H1N1 virus or Swine Flu.  Although it was not as serious as many people feared, it did have an impact on millions of people.  This years newest concern is the "super bug"  that is resistant to most antibiotics.  Although we don't know how wide spread this "super bug" may be, it is a reminder that employers should have a Pandemic Policy in place in the event the workforce is decimated by the flu, the "super bug", or even a natural disaster such as an earthquake or hurricane.

Social Media

Social media continues to create havoc for the legal system.  The ABA Journal published a story on September 2 where a juror in Michigan, in a criminal case, published on her Facebook site that she thought the defendant was guilty, before the case went to verdict.  She wrote that she was "actually excited for jury duty tomorrow...it's gonna be fun to tell the defendant they're guilty".  The trial judge found her in contempt, fined her $250, and ordered her to write a 5 page essay on the Sixth Amendment, which guarantees defendants a right to a fair and impartial jury. 

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