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

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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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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