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

As we approach the end of 2012, but not the end of the world according to some interpretations of the Mayan calendar, some things are changing and some things are staying the same. The changes include:

IRS Mileage Rates for 2013.  For 2013, the IRS has established new mileage rates for use of a car:  56.5 cents per mile for business miles, 24 cents per mile for medical or moving, and 14 cents per mile in service of charitable organizations. 

Stupid People Do Stupid Things On Social Media.  In the aftermath of the tragic murders in Newtown, Al.com reported that Dakota Kent, a 21 year old Blount County man, was jailed for posting terrorist threats on his Facebook account.  What did he say?  "I am so irritated I could shoot up an elementary school", "I can't be the only one who thought that was @#%! funny", "[a]nd if you want to help the families get through this, send them a #@(ing 'I'm sorry your kid got shot card,' ", and  "[h]e used over 100 rounds and only killed 26.  They should just be lucky he was a bad shot."  What an idiot.

To prove that even lawyers do stupid things, in New Orleans, the United States Attorney, Jim Letten recently resigned his post.  Mr. Letten was the well respected, long standing U.S. Attorney who served through several presidencies, which is unusual.  What happened?  Main Justice reported that Sal Perricone, a Senior Assistant U.S. Attorney resigned earlier this year.  1st Assistant U.S. Attorney Jan Mann resigned earlier this week.  Why?  They were both caught editorializing, under pseudonyms, on NOLA.com about pending cases they were working on.  Both are possibly facing ethics charges and perjury charges as the result of testimony they gave to the court while investigating the allegations.  I would recommend reading this article so see how dangerous it can be to post on social media and/or blogs.

Trouble for the NLRB.  The U.S House of Representatives Committee on Oversight and Governmental Reform issued a report on December 13 entitled "President Obama's Pre-Union Board:  The NLRB's Metamorphosis from Independent Regulator to Dysfunctional Union Advocate."  This 33 page report finds that "...[T]he NLRB appears to be sacrificing fairness to 'job creators' in order to promote pre-union polices.  To make matters worse, its leadership disregarded ethics and internal rules along the way."  Very strong language.  The report levels multiple charges against the NLRB, including internal communications deemed to have a pro-union bias, allegations of financial conflict of interest with former board member Terence Flynn and acting General Counsel Lafe Solomon, and rushing to issue 2 substantive rules in 2011 that ignored past precedent.  These rules required employers to post a notice of employee's rights under the NLRA and changing the procedures for union organizing elections.  To make matters even worse for the NLRB, on December 12, just one day before this report was released, the Board overturned 50 years of precedence when it ruled, in a 3-1 decision, that a dues checkoff provision will survive the termination of a collective bargaining agreement.    

 EEOC Approves Strategic Enforcement Plan.  As part of it's overall strategic plan for 2012-2016, the EEOC recently approved it's Strategic Enforcement Plan (SEP).  According to it's press release, the SEP identifies 6 national priorities as the focus of this integrated enforcement effort:

     1.  Eliminating barriers in recruitment and hiring.

     2.  Protecting immigrant, migrant and other vulnerable workers.

     3.  Addressing emerging and developing employment discrimination issues.

     4.  Enforcing equal pay laws.

     5.  Preserving access to the legal system.

     6.  Preventing harassment through systemic enforcement and targeted outreach.

It will be interesting to see how the EEOC follows up with their SEP.

I hope everyone has a Joyous Holiday Season and a Happy New Year!  I will be back next year with more.

• Email This
• Print
• Comments
• Trackbacks

Last week, I attended the 6th Annual American Bar Association's Annual Labor and Employment Law conference.  It was attended by lawyers from around the world, and focused on the current state of labor and employment law and what the hot topics of today and the immediate future.  In no particular order, here are some of the topics talked about:

1.  The National Labor Relations Board has been very active pushing it's agenda, and focusing on policies and procedures.  Remember that the National Labor Relations Act provides protection to employees who engage in protected concerted activity as it relates to the terms and conditions of employment, in both union and non-union settings.  The NLRB has recently addressed polices concerning social media, at will employment, and the confidentiality of investigations as the result of allegations of harassment and discrimination.

2.  Retaliation charges filed with the EEOC are now number one in that 37% of all charges filed contain allegations of retaliation.  This is a higher percentage then race and sexual harassment charges.

3.  The Fair Labors Standards Act continues to account for a great deal of litigation, both for overtime and misclassification of workers as either exempt or as independent contractors.

4.  The improper use of computers can lead to both criminal and civil liability under the Computer Fraud and Abuse Act, the Electronic Espionage Act (criminal only), the Electronic Communications Privacy Act, the Stored Communications Act, and various state laws.  The local U.S. Attorneys' office has a Computer Hacking and Intellectual Properties (CHIP) lawyer, and can be contacted should there be any issues.  You can visit Cybercrime.gov, for more information and resources from the Department of Justice.

5.  The EEOC continues to be busy, but like most governmental agencies claims a budget shortfall.  The EEOC will continue to be active in issuing regulations and enforcement guidance, but will be more selective when filing lawsuits. According to one of the attorneys for the EEOC, they are "trying to push the envelope" in certain areas, including same sex harassment, gender stereotyping, and in the LGBT arena.

6.  Social Media continues to raise concerns in the workplace.  In the U.S., 163 million people, or 53% of the population, use Facebook.  Globally, there are over 1 billion users of Facebook, and there are 2.5 billion posts a day.  There is an average of 3,000 tweets a second, with the record being set during the last presidential debate, with 100,000 tweets per second. The use of other SM sites continues to grow.  

7.  Workplace bullying, both in person and cyber-bullying is growing.

Practice pointer.  As we approach the end of the year,  now is a good time for employers to review and/or have an audit done of their policies and procedures, and revise them as necessary to comply with the changes that have occurred over the past year.  Make sure there is proper classification of employees for FLSA purposes, that the NLRA is not violated, and that other policies are current and up to date.  Now is also a good time to train all workers, including supervisors, on various employment related issues, including harassment, discrimination, social media policies and other workplace rules and regulations. 

• Email This
• Print
• Comments
• Trackbacks

Facebook hits 1 Billion Users.  When Facebook had it's IPO in May, it reported that it had 845 million monthly active users.  Today, Mark Zuckerberg reported that FB hit the 1 Billion mark for monthly active users, 1/7th of the world's population.  In May, it was also reported that FB had 2.7 billion likes/comments a day, 250 million photos uploaded on a daily basis, 100 billion "friendships" and 9.7 billion minutes a day were spent on FB.  These numbers have grown since May.  In comparison, as of June, Twitter had 500 million accounts, with over 100 million tweets a day, YouTube had 200 million views a day, LinkedIn had 150 million users and interest was growing in other SM sites, including Tumblr, PInterest and 4Square.

NLRB Rules on Termination of Salesman.  Over the past 1 1/2 years, I have spoken many times and have always mentioned the case of the car salesman in Illinois who was fired after 2 posts on FB. The salesman had posted critical comments about a sales event:  hot dogs were not good enough for the customers attending a large sales event at the BMW dealership he worked for.  He was compensated in part on customer satisfaction surveys as well as the number of sales he made.  He also posted pictures and comments around the same time about a vehicle accident at the adjoining Range Rover dealership, also owned by the same company who owned the BMW dealership.  He was terminated after these posts were discovered by his employer.  An Administrative Law Judge found that the comments about the sales event were protected concerted activity under the NLRA and he could not be terminated because of this.  However, the ALJ also found that the posting about the Range Rover accident was not protected concerted activity, and thus found his termination was lawful.

Practice Pointer.  The NLRB has been taking a very strong stance about policies and procedures involving the use of social media, and will continue to do so under the current administration.  All companies should review their social media policies and procedures to ensure compliance with the NLRA.  Because this is a very complicated, complex and nuanced area of the law, companies should consult their legal counsel in implementing and/or reviewing their SM policies.

• Email This
• Print
• Comments
• Trackbacks

Several mid-week updates on a variety of topics.

IMMIGRATION. 

     The U.S. Supreme Court is hearing oral argument on Arizona's immigration law today.  Their opinion(s) are expected in several months.  I will update you on this topic once a decision is rendered. 

     In the meantime, the Alabama Legislature is working on potential amendments to HB56.  I have not reported on this, and will not, until it becomes law.  When and if the Legislature approves revisions that Governor Bentley will sign, I will compare the new and old laws as they pertain to employment issues.

FACEBOOK PASSWORDS. 

     There has been a lot of publicity about whether or not companies can ask employees or prospective employees for passwords to their Facebook and other social media accounts.  Maryland is the first state to pass a law prohibiting this practice, although as of this time, the Governor has not signed it into law.  Many other states are considering passing such laws.  Some members of Congress are also looking into this issue, including asking the EEOC to determine if asking for passwords is coercion which could be in violation of the Computer Fraud and Abuse Act or the Stored Communications Act.  

     For employers that do ask for passwords to social media sites, and actually look at them, caution is advised.  Learning too much information can lead to lawsuits.  Is the employee/prospective employee a member of a protected class, such as pregnant, disabled, etc? By disciplining or refusing to hire such a person, claims could be made for alleged violations of Title VII, Pregnancy Discrimination, GINA, ADA, and other laws.  The NLRB, which is extremely active right now, may consider this practice to be a violation of the NLRA, by discouraging employees from concerted activity: communicating about the terms and conditions of their employment.  This could lead to a push for unionization by the workforce at employers who ask for passwords

UNIONIZATION. 

          Speaking of unionization, April 30 is the effective date for the new rules about how unions can be formed.  Yesterday, the Senate blocked an attempt to delay the implementation of the rules.  There is currently a lawsuit filed by the U.S. Chamber of Commerce, but as of now, there has been no court ruling staying the implementation of the new rules.  I posted about the new rules on December 7. 

 EEOC RULES ON TRANSGENDER PROTECTION. 

     The Los Angeles Times reported today that the EEOC has ruled that transgender individuals may file claims under Title VII.  Mia Macy worked for the Phoenix Police Department and worked with an ATF ballistics team while they were in Phoenix.  At the time Macy applied for a job and was accepted, pending a background check, with the ATF, she was a male.  After applying, Macy went through a transition and became a female.  Macy and her wife moved to California for the new job, but was told the job had been eliminated due to budget cuts.  In fact, the job had been filled with someone else.  Macy filed a complaint with the EEOC alleging sex and gender discrimination.  The EEOC, which had been inconsistently enforcing Title VII in cases involving transgender claims, used Macy's case to clarify it's position that Title VII does apply to claims involving transgender discrimination, and will now allow transgender individuals to file charges in all jurisdictions.  The EEOC's enforcement activities will apply in both the public and private sectors. 

• Email This
• Print
• Comments
• Trackbacks

I have posted recently about the NRLB requirement for the posting that informs employees of their rights under the NLRB.  Last week, a Federal District Judge in South Carolina found that the Poster was unlawful, but did not block it's implementation.  This created a split between the courts, and left employers wondering what to do.  Now, the U.S. Court of Appeals for the District of Columbia Circuit has entered an injunction halting the implementation of the NLRB's rule to post this information.  The Court will hear additional arguments concerning the Poster requirements to determine if they are legal or not.  In light of this ruling, there is no requirement to post the NLRB Poster at this time. 

• Email This
• Print
• Comments
• Trackbacks

HB 56 Update.  April's Fools day.  My birthday.  Mandatory use of E-Verify for all employers in Alabama.  April 1 is the magical day for all of these.  Over the past month, I have had many clients asking questions about what they need to do to comply with HB 56 and the E-Verify requirements.   The E-Verify provisions of HB 56 were not challenged in court, and thus are the law.  Since September 1, 2011, when the law became effective, it has been illegal to knowingly employ, hire or continue to employ an unauthorized alien.  All businesses and entities doing business with the state, any political subdivision of the state or any state funded agency were required to start using E-Verify as a condition of an award of such a contract effective January 1.  I have seen a number of forms used by various public entities that they have sent out to their contractors that must be completed in order to continue doing business.  As of April 1, all employers and business entities, which are broadly defined, must use E-Verify for all new employees that are hired.   Violations can lead to severe consequences, including the permanent revocation of all business  licenses and permits throughout the state for a third violation. 

As I have previously posted, E-Verify CANNOT be used for existing employees, and must be used within 3 days after the new employee is hired. E-Verify DOES NOT take the place of I-9 forms:  they too must be completed withing 3 days of a new employee being hired.  I have stated before, and will state again, that I-9's should be audited to make sure that they are in compliance with federal law.  Any such audit should be done by someone knowledgeable with I-9's, because an improper audit or improper corrections may cause more of a problem then if nothing was done. 

NLRB Poster Update.  Another reminder:  the NLRB's required poster language takes effect on April 30.  I have previously posted about this requirement in detail. 

• Email This
• Print
• Comments
• Trackbacks

I have previously posted about the requirements of the the Poster required by the NLRB, entitled "Notification of Employee Rights".  After various delays, the effective date was moved to April 30, 2012.  The Rule requires that all employers covered by the NLRA post, in a conspicuous place, a notice informing employees of their right to organize and provide contact information for the NLRB.  Last week, Judge Amy Berman Jackson, of the U.S. District Court for the District of Columbia, upheld the requirement that the poster be put up in the workplace, but struck 2 sections of the required posting:  that the failure to post is an unfair labor practice and that the failure to post tolls the statute of limitations against employers who fail to post.  The decision, however, held that although the "Board cannot make a blanket advance determination that a failure to post will always constitute an unfair labor practice", it can determine on a case by case basis that an employers failure to post can constitute an unfair labor practice.  This case is likely to be appealed, and the NLRB, with it's current liberal majority, will probably pursue action against employers who fail to post the notice.

Practice pointer.  The requirement to post the notice still stands:  it must be posted on or before April 30th. 

EEOC Issues New Guidelines for Veterans with Disabilities.  Last week, the EEOC issued 2 revised publications on the employment of veterans with disabilities.  The Guide for Employers explains how protections for veterans with service-connected disabilities differ under the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA), and how employers can prevent disability-based discrimination and provide reasonable accommodations.  The Guide for Wounded Veterans answers questions that veterans with service-related disabilities may have about the protections they are entitled to when they seek to return to their former jobs or look for civilian jobs. The publication also explains the kinds of accommodations that may be necessary to help veterans with disabilities obtain and successfully maintain employment.  Traumatic Brain Injuries (TBI) and Post-Traumatic Stress Disorder (PTSD) are among the disabilities that employers will be expected to reasonably accommodate, if possible. 
 

Practice Pointer.  The EEOC remains very active, and will be involved in situations involving disabled  veterans returning to the private workforce.  Approximately 3 million veterans have returned over the last 10 years, and it is expected that another million will return over the next 5 years as troops are withdrawn from the Middle East and Department of Defense funding is reduced.  With a 12 percent unemployment rate for post 9/11 veterans, I expect the EEOC to be very aggressive in this area.  Any returning disabled veterans (Thank you for your service to the US), and any employers who have disabled veterans apply for jobs should read these publications. 

• Email This
• Print
• Comments
• Trackbacks

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. 

• Email This
• Print
• Comments
• Trackbacks