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

As we prepare to bring to an end 2011, I want to wish all of you a Merry Christmas, Happy Hanukkah, Happy Holidays, and a Happy and Healthy New Year.  2012 will continue to bring many changes in the employment arena, including the following:

Immigration Law: HB 56.  A reminder that any business that has contracts with the State of Alabama must begin using E-Verify effective January 1, 2012.  All employers are required to use E-Verify on or before April 1, 2012.  At this time, the 11th Circuit Court of Appeals has scheduled argument on the appeal of Judge Blackburns' orders enjoining parts of HB56.  In light of the Supreme Court's decision to accept an appeal of Arizona's law, Alabama has asked the 11th Circuit to stay the appeal, while the Plaintiffs, including the Department of Justice, have asked to go forward.  I will continue to post on my blog as the case winds it way through the courts. 

NLRB.  A reminder that the NLRB is requiring a new poster to be posted in the workplace effective January 31, 2012.  I summarized the poster requirements in a prior blog entry.

11th Circuit issues 2 new discrimination decisions.  In August, 2010, I posted an entry entitled "The Case that Never Ends".  Tyson was sued by Mr. Hithon, a black employee, alleging that the use of the word "boy" by his supervisor constituted racial harassment.  The court previously held in favor of Tyson.  Just last week, the 11th Circuit revisited this case, and reversed the prior decision, awarding Hithon $364,000.  Interestingly, as the Republican Presidential primary season officially starts, one of the issues being discussed is judicial activism.  The Atlanta Journal Constitution reports that the prior decision had been condemned by 11 civil rights pioneers, who had filed a brief with the court linking the use of the word "boy" to slavery.  The court found that the use of the word "boy" in and of itself was not discrimination, but the facts surrounding the use of the word "boy" in this case was sufficient to find in favor of Mr. Hithon. 

The 11th Circuit also issued a decision 2 weeks ago, in the case of Glenn v. Brumby, addressing harassment of an individual diagnosed with gender identity disorder.  Mr. Glenn was born a biological male, and subsequently diagnoses with gender identity disorder.  He/she began working for the Georgia General Assembly's Office in 2005 as a male, but in the fall of 2007 advised his/her supervisor that he/she was undergoing a gender transformation and would be coming to work as a female.  Glenn was subsequently discharged, and filed a claim alleging sex discrimination and discrimination based on her medical condition.  The trial court granted summary judgment in favor of the employee on the sex discrimination claim, and in favor of the employer on the medical condition claim.  On appeal, the 11th Circuit reversed the summary judgment in favor of the employer, and found that all persons, whether transgender or not, are protected from gender based discrimination by government agents, and that discriminating against someone on the basis of gender non-conformity constitutes sex based discrimination.  It should be noted that  the supervisor testified that "he fired Glenn because he considered it inappropriate for her to appear at work dressed as a woman and that he found it unsettling and unnatural that Glenn would appear wearing women's clothing."

Theft by Employees.  2 articles caught my attention today concerning theft by employees.  This continues to be a problem for all employers.  First, Al.com reports that Walter Skrobak, the former head security guard at the McCalla OfficeMax Powermax Facility,  pleaded guilty to stealing over $600,000 of computer software.  Between October 2008 and November 2010, he stole at least 1,600 units of computer software and sold them, via Pay Pal, to a party residing out of state for nearly $400,000. 

In New York, 3 employees stole almost $58,000 of lingerie from a Victoria's Secret Store.  An internal investigation reveals that the thefts occurred over the last 6 months.  Incredibly, one of those arrested stated that "My heart dropped when I saw that figure on the Internet...They exaggerated a lot, trust me.  They must have charged like full price for everything, and doubled the sales tax".  He admits that he only pocketed $800 during the 6 month crime spree. 

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The EEOC continues to file suits and reach settlements around the country on a regular basis.  Most recently, the EEOC announced a settlement with a Starbucks store in Arkansas as the result of disability discrimination.  According to KATV, Chuck Hannay was not hired because he has multiple sclerosis.  The EEOC said that Hannay applied for one of six barista positions, but he was never contacted and individuals with less experience and ability were hired instead.  The Starbucks store agreed to pay $80,000, and was enjoined from discriminating on the basis of disability and retaliation.  According to EEOC Regional Attorney Faye Williams, "People with disabilities should have equal opportunities for employment....This case demonstrates the EEOC's commitment to combat discrimination that prevents individuals with disabilities from taking their rightful place in the work force.

In Houston, the EEOC announced that two Sonic Drive-In franchises, with common ownership and management will pay $55,000 to settle a sexual harassment lawsuit filed by the EEOC.  According to the EEOC, the primary owner of the franchises "promoted a young, unqualified family member to consecutively higher management positions within the restaurants and allowed him to use his position of power to sexually harass the teens starting in 2006".  The EEOC also contended that this manager permitted and encouraged other male employees and managers to join in the harassing conduct.  When a 17year old female rejected the sexual advance of the manager, he became abusive to her and threatened her with a knife.  In addition to the monetary settlement, the defendants were required to develop and implement new policies and procedures for addressing illegal discrimination in the workplace, and they must be approved by the EEOC prior to implementation.  Jim Sacher, the EEOC's regional attorney, was quoted as saying:  "This lawsuit was filed in order to protect some of our nation's most vulnerable and impressionable workers-teenagers who. often are newcomers to the workplace...."

Practice pointers.  The EEOC continues to be extremely active in pursuing lawsuits and settlements  around the country.  Press releases usually accompany the filing of lawsuits and the settlement of cases, resulting in negative publicity for the companies named.  It is important to implement proper policies and procedures, and train the entire workforce on a regular basis.  This includes family members. 

As mentioned in a previous post, the EEOC is concentrating on harassment of young workers.  As we are still in the summer employment season, now is the prime time for teenagers who have summer jobs to be harassed, discriminated against and otherwise mistreated.  Again, training and monitoring the workforce is a must.

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Oftentimes, when I give speeches, I tell the audience that I cannot make up stories that are stranger than what happens in real life.  Over the past several days, I came across two cases where the truth may be stranger than fiction.

In New York, Business Insider reports that Debrahlee Lorenzana filed a lawsuit against Citibank because "she is too hot".  Courtney Comstock, who wrote the article for Business Insider, reports that Ms. Lorenzana is 5'6", 125  pounds, and curvy.  Allegedly, she was told by her bosses that "as a result of the shape of her figure, such clothes were purportedly 'too distracting' for her male colleagues and supervisors to bear...". The Village Voice described her as "J.Lo curves meets Jessica Simpson rack meets Audrey Hepburn elegance-a head-turning beauty".  She complained to HR via phone and emails on a regular basis, and an HR investigation took place.  She alleges that after the investigation, things got worse. Allegedly, her clients were transferred to co-workers, and her performance deteriorated.  She received a letter putting her on probation for allegedly coming in late to work on 2 consecutive days: which apparently were a Saturday and Sunday, when the office was closed.  She was ultimately transferred to another branch, worked as a telemarketer, and was ultimately fired by a female manager, being told that the reasons for termination were her clothes at the previous branch and that she was not fit for the culture of Citibank.  The case will go to arbitration since she signed an arbitration provision when she was hired.

Practice pointer.  I suggest that you read the articles in Business Insider and The Village Voice for more details about the allegations.  Needless to say, they sound like a textbook case of sexual harassment and retaliation.  The comments, the delayed investigation by HR, emails sent to vice presidents that were ignored, the transfer, demotion and the ultimate determination to terminate her all raise questions, if the allegations are true.  Training all employees, including supervisors, as to company policies and procedures is very important, from dress code, to attendance, to anti-harassment/anti-retaliation.  Complaints of harassment must be taken seriously.

 In Georgia, the Atlanta Journal Constitution reported that  the ex-football coach at Savannah State University has filed suit alleging discrimination.  Robert Wells, the first white football coach in the 98 year old history of the  historically black university, alleges that he was fired one month after he accepted a one year contract extension because his fiance is black.  The suit also alleges that the school hurt his reputation saying he violated recruiting rules while recruiting 5 white football players.  In the lawsuit, Wells alleges that he was told that he "would never have the support of the citizens of Savannah because he is white and his fiancee is black" and that he was criticized by university officials for letting his fiancee host a "coach's show" on television, ride on a parade float with him and accompany him to away games.  ESPN's Outside the Lines did a story on the situation and there are many interesting statements made by both sides of this suit. 

Practice Pointer.  Whether the allegations made by Coach Wells are true or not, I want to emphasize that racial discrimination is racial discrimination: whether it is white discriminating against black, or vice versa.  Racial discrimination is illegal, and should not be tolerated in any workplace.

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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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Danny Morton, the Sheriff of Blount County, Alabama, has agreed to resign effective January 15, 2009 due to allegations of sexual misconduct.   According to the Birmingham News, a female deputy sheriff, assigned to the drug task force, filed an EEOC charge on April 11, 2008 alleging that she was forced to drink alcohol while on duty, was fondled, kissed and sexually assualted.  At the time, Sheriff Morton denied the allegations of the complaint. 

A criminal investigation began, and a special proscecutor was appointed by the Attorney General's office.  An agreement was reached allowing Sheriff Morton to resign on January 15, 2009, and no criminal charges will be filed against him.  The article from the Birmingham News, dated December 16, 2008, is availble to read here.  There is no indication on how the EEOC charge is being handled at this time.

Practice Pointers.

1.  All employers must recognize that sexual harassment and other prohibited conduct can be engaged in at all levels: from the top, like a sheriff, to the bottom, of each organization.

2.  Employers should have a mechanism to report harassment, sexual or otherwise, to at least 2 people, in case their supervisor or CEO is the one accused of the wrongful conduct.

3.  Allegations of sexual harassment may give rise to a criminal investigaion and possibly charges for assault, rape, kidnapping or other crimes.

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