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Friday, September 8, 2017

Sweet Revenge for Breastfeeding Tuscaloosa Police Officer


Tuscaloosa Police Officer Stephanie Hick was hired in 2009 by the Tuscaloosa Police Department as a patrol officer on the West Alabama Narcotics Squad and worked temporarily as an undercover agent. Hicks learned that she was pregnant on January 6, 2012, and informed her Captain and asked what the policies were for pregnant employees. She was informed that no policies were in place for pregnant employees and the Chief stated that it was at the discretion of her supervisor, as reported in a Federal Judge’s Order.

On August 8, 2012, before going off on leave, Hicks received her annual evaluation and her overall performance was evaluated as "exceeds expectations." Hicks then took 12 weeks of FMLA beginning mid-August 2012, for the birth of her child and on November 26, 2012 returned to duty.

Within an hour of beginning her first day back at work, Hicks was called into the Captain’s office to speak with him and a Sergeant, where she was told that she was being written up in the form of an "informal counseling" for allowing her vehicle to go 1200 miles over the limit for recommended oil changes without changing the oil and for continuing to obtain multiple warrants for individual defendants.

Hicks also discussed with the Captain and Sergeant in this same meeting that she was breastfeeding her new child. The Captain informed Hicks that the police station did not have a pumping area similar to the lactation rooms at City Hall. Hicks asked if she could use the records room to express breast milk, but the Captain indicated that Hicks should use the locker room.

After the meeting, Hicks overheard the Captain and Sergeant discussing wanting to "get rid of that little bitch" and that they would find "any way" they could to do so, along with other more colorful references to Hicks.

Reluctantly, Hicks expressed breast milk in the police locker room at work roughly twice a day, and every time Hicks expressed breast milk at work, someone entered the locker room.

Hicks was reassigned and demoted to a less desirable unit in December 2012, after only six days back on the job. She was also required to be on patrol and to wear a bullet-proof vest. On her doctor's orders, Hicks requested a desk assignment because wearing the vest would “impede milk production or cause infection.” Her request was denied and she was given the choice of wearing a larger vest or working without one, the Judge wrote.

Hicks resigned in January 2013, and filed suit against the City under Title VII of the 1964 Civil Rights Act, the Family and Medical Leave Act and state law. A Federal Magistrate Judge in the Northern District of Alabama ruled her allegations sufficiently stated a triable claim to submit to a jury on pregnancy bias, leave interference, and constructive discharge claims. The “fact that the plaintiff could ‘work-around' the fact that she was not provided a private place to pump [breast milk] at her place of work does not absolve the defendant of its failure to provide her with such a location, as required”, the Judge noted.

A federal court jury, on February 19, 2016, found in favor of Hicks and awarded her $374,000 in damages, finding that the City violated the Pregnancy Discrimination Act by making working conditions intolerable and engaged in FMLA Retaliation, which compelled her to resign. There is now a room designated for women who need to use a breast pump at TPD headquarters and two at City Hall. The Federal Judge reduced the award to $161,319.92 plus costs and attorneys’ fees, and the 11th Court of Appeals affirmed the award on Thursday.

Common Sense Counsel: It's unlawful to take adverse employment actions against an employee because she insists on her right to take a break and lactate or for expressing breast milk at work. The Judge’s 45 page opinion is a trail of facts on how to botch a female’s return from pregnancy leave. And with most adverse employment decisions, bad timing is the mother’s milk upon which substantial verdicts rest.

Here is a link to the case: 


Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Friday, September 1, 2017

Just Too Cute To Work Here




Charles Nicolai is married to Stephanie Adams Nicolai and the two are co-owners of Wall Street Chiropractic and Wellness. Charles is the head chiropractor and oversees the medical operations, while Stephanie is the chief operating officer. In April of 2012, Charles hired Dilek Edwards, as a yoga and massage therapist, and he was her direct supervisor.

The NY Lawsuit alleged that the relationship between Charles and Dilek was "purely professional" and that Charles regularly praised her work performance throughout her period of employment. In June 2013, Charles informed Dilek that his wife might become jealous of her, because she was “too cute.'"

Approximately four months later, on October 29, 2013, at 1:31 a.m., Stephanie sent Dilek a text message stating, "You are NOT welcome any longer at Wall Street Chiropractic, DO NOT ever step foot in there again, and stay the [expletive] away from my husband and family!!!!!!! And remember I warned you." A few hours later, at 8:53 a.m., Dilek received an email from Charles stating, " You are fired and no longer welcome in our office. If you call or try to come back, we will call the police.'" On October 30, 2013, Stephanie filed a complaint with the New York City Police Department (NYPD) alleging that Stephanie had received "threatening" phone calls from Dilek that so frightened her as to cause her to change the locks at her home and business.

Dilek alleged in her NY wrongful discharge lawsuit that her relationship with Charles was strictly professional and that she "has no idea what sparked . . . suspicions" to the contrary.” Dilek also claimed alleged that Stephanie's complaint to the NYPD was false and was made for the purpose of harming her.

Based on the assumption that everything the therapist claimed in her lawsuit was true, the Appellate Division of New York found that she had stated valid legal claims for gender discrimination under the New York State Human Rights Law and the New York City Human Rights Law. According to the Court, under both laws, “adverse employment actions motivated by sexual attraction are gender-based and, therefore, constitute unlawful gender discrimination.” Because the therapist alleged that the chiropractor “was motivated to discharge her by his desire to appease his wife’s unjustified jealousy, and that [the wife] was motivated to discharge [her] by that same jealousy,” the claims could go forward.

The outcome would have been different, the Court said, if the wife had fired the therapist for having an affair with the chiropractor. “In such cases,” the Court said, “it was the employee’s behavior — not merely the employer’s attraction to the employee or the perception of such an attraction by the employer’s spouse — that prompted the termination.” The Court also found that the therapist had stated a valid legal claim for defamation, based on the wife’s allegedly false report to the police.

Common Sense Counsel: Making wise hiring decisions, with all critical decision makers involved, is many times the most critical decision for a small business.

 Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Friday, August 25, 2017

Employer Federal Marijuana Defense Up In Smoke


Katelin Noffsinger was made a verbal offer for a position as Director of Recreational Therapy at Bride Brook, a nursing facility in Niantic, Connecticut. When she was then asked to undergo a routine pre-employment drug screen, Noffsinger disclosed that she was diagnosed with PTSD and that she took prescription marijuana as a “qualifying patient” under Connecticut Palliative Use of Marijuana Act (PUMA). Noffsinger provided Bride Brook a copy of her patient registration certificate, explaining that she only took Marinol in the evenings, before bed, and thus would not be impaired during the workday. The day before Noffsinger was scheduled to begin work, Bride Brook rescinded her job offer because she tested positive for marijuana.

Noffsinger filed a complaint in Connecticut state court, alleging a violation of PUMA’s anti-discrimination provision which states, “no employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient.” After removing the case to federal court on the basis of diversity jurisdiction, Bride Brook moved to dismiss Noffsinger’s complaint. The court denied the motion finding no federal preemption by the federal Controlled Substances Act (CSA), Americans with Disabilities Act (ADA) or the Food, Drug and Cosmetic Act (FDCA). 

Bride Brook had argued that an actual conflict exists between PUMA, which affirmatively authorizes the medical use, possession, sale and distribution of marijuana, and the CSA, which classifies marijuana as a Schedule I substance with no known medicinal purpose and thus makes it a federal crime to use, possess, or distribute marijuana. The court rejected this argument as “overbroad,” holding that, because Noffsinger’s claim is limited to PUMA’s anti-discrimination provision Bride Brook must prove a conflict between that specific provision and the CSA, not between the CSA and PUMA more generally. The court held that no such conflict exists because the CSA does not prohibit employers from hiring or employing individuals who use illegal drugs. It distinguished this case from multiple cases in other states that held CSA preempted the state’s medical marijuana law, as none of those state statutes had specific anti-discrimination provisions. Even more disturbing the court held that there is no broad exemption for federal contractors or other federally regulated employers.

Common Sense Counsel: This case complicates an already complicated landscape for employers who conduct drug testing for marijuana, particularly as the decision marks the third time in four months that a court has ruled against employers in drug testing cases involving medical marijuana users. The others were Massachusetts and Rhode Island state courts.  This is the first time a federal court has considered whether the CSA preempts a state medical marijuana law’s anti-discrimination provision, and the result is a warning to employers with policies that include categorical bans on marijuana use. There are at least eight states that have similar medical marijuana employment anti-discrimination penalty prohibition laws, so fix your drug free workplace policy so it will not go up in smoke.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com


Monday, August 21, 2017

Pharmacist’s needle phobia loses to well drafted job description


As soon as Christopher Stevens turned 16, he got a job at Carl’s Drugs, and he remained employed continuously by Carl’s Drugs and its successors, which included Rite Aid, for the next 41 years. Stevens’ job included providing medication safely to customers, ensuring that medications were stored properly, providing appropriate information to customers regarding their prescriptions and fielding medical questions.

In March of 2011, Stevens received an e-mail from the district manager which informed all pharmacists that Rite Aid was going to require them to start giving immunization shots to customers. Doubting his ability to give shots as a result of his lifelong fear of needles, Stevens consulted Rite Aid’s employee handbook, which included a provision regarding the accommodation of employees with disabilities in compliance with the Americans with Disabilities Act (“ADA”). Stevens provided Rite Aid with a note from his treating physician who explained that Stevens’ suffers from trypanophobia2 (“needle phobia”) and informed Rite Aid that as a consequence Stevens could not give injections. Notwithstanding, Rite Aid directed him to undergo immunization training and ignored his request for an accommodation for his disability.

Stevens heard nothing further from Rite Aid until two months later, when Rite Aid’s Human Resources Department faxed Stevens a list of five questions that he wanted his doctor to answer regarding Stevens’ phobia and the doctor responded with a note indicating that if Stevens were to administer an injection, “[h]e would become diaphoretic, hypotensive and probably faint. He advised Rite Aid that Stevens could not safely administer an injection, since the likelihood that he would faint would be “unsafe for the patient and Mr. Stevens.”

On August 18, 2011, several Rite Aid managers came into the pharmacy where Stevens was working and told him that Rite Aid had concluded that the ADA did not apply to his trypanophobia, that they were not required to make any accommodation for him and, that if he did not successfully complete immunization training and start giving injections, he would lose his job. No accommodation or alternate position was offered or even discussed at that meeting. The following week, Stevens was terminated by a letter.

Stevens brought an action against Rite Aid, asserting claims for wrongful termination because of a disability, retaliation, and failure to provide a reasonable accommodation for his disability in violation of both the ADA and a similar New York State law. The jury returned a verdict in favor of Stevens and awarded back-pay damages of $485,633.00, front-pay damages of $1,227,188.00 and non-pecuniary damages of $900,000. The Second Circuit reversed and ruled in favor of Rite Aid finding that Rite Aid’s designation of a job duty as an “essential function” is essentially dispositive, absent clear and convincing evidence to the contrary by the employee. This week Stevens filed a petition for certiorari with the U.S. Supreme Court claiming the 2nd Circuit was wrong to not use a 7 part test.

Common Sense Counsel: The case is a lesson for all employers on the weight a well drafted job description has with the courts. Have them for all positions so you will not get jury phobia.


Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Friday, August 11, 2017

Waffle House Smothers Lawsuit



William Jones applied for a job at a Florida Waffle House in Ormond Beach in December 2014 but was rejected. In October 2015, Jones sued Waffle House and various data-reporting companies in federal district court, claiming that they violated the Fair Credit Reporting Act by failing to give him a copy of the background checks that were run on him in connection with his job application and by failing to give him an opportunity to dispute those background checks. Jones also sought class relief, seeking to represent a class of United States residents who applied for employment with Waffle House in the preceding five years who Waffle House did not hire based on a background check.

While that lawsuit was pending, Jones continued to seek employment with Waffle House elsewhere, and, in February 2016, Jones was hired at a Waffle House in Kansas City, Missouri. In connection with that employment, Jones signed an arbitration agreement that covered “all claims and controversies, past, present, or future, arising out of any aspect of or pertaining in any way to his employment.”  The agreement also included a delegation provision requiring that “the Arbitrator, and not any federal, state, or local court or agency, shall have authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement.” Jones neglected to tell his new employer in Kansas City that he was actively suing Waffle House in Orlando. When Waffle House’s legal team later learned, in March 2016, that Jones had signed an arbitration agreement, it moved to compel arbitration pursuant to the agreement.

This week the 11th Circuit Court of Appeals held that the Waffle House arbitration agreement contains a broad, valid, and enforceable delegation provision that expresses the parties’ clear and unmistakable intent to arbitrate gateway questions of arbitrability, including questions concerning the interpretation, applicability, enforceability, and formation of the agreement. “In the face of the Federal Arbitration Act’s clear preference for and presumption in favor of arbitration, we are obliged to enforce the parties’ clear intent to arbitrate these issues.” The 11th Circuit has the same track record on similar past decisions.

Common Sense Counsel: in the employment law the most feared words a plaintiff’s employment lawyer hates to hear their client say is “oh by the way I signed an arbitration agreement with my employer.” It is like yelling Zika on South Beach – all the lawyers scatter. It will be the single best employment law risk reduction strategy you may ever use.
The best programs have the following components: 1) an internal complaint process with a promise of no retaliation; 2) handbook provisions giving employee two channels to make their complaint and fair investigation process; 3) well drafted and broadly worded arbitration provision, covering class claims, that will pass court scrutiny; 4) private arbitration panel of former local judges, or AAA Arbitration, and mostly importantly; and 5) a Human Resource professional with a listening ear and risk reduction mindset.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com



Thursday, August 3, 2017

Battle of the feds! DOJ, EEOC lock horns on sexual orientation bias


Battle of the feds! DOJ, EEOC lock horns on sexual orientation bias

The U.S. Department of Justice and the Equal Employment Opportunity Commission are at cross purposes in the “gay skydiver” case.

Donald Zarda worked for Altitude Express as a skydiving instructor. Following one jump, a customer complained that Zarda had disclosed his homosexuality and other personal details during the jump. Zarda was fired soon thereafter. He sued Altitude Express claiming sex discrimination under Title VII, gender and sexual orientation discrimination under New York state law, and violation of state and federal wage and hour laws. Zarda is deceased but his lawsuit lives on through the two executors of his estate who have replaced him as plaintiff. At trial on his state law discrimination claim, the jury found that Zarda had not proved that his sexual orientation was a determining factor in his termination.

On appeal, Zarda claimed that Title VII protects against sexual-orientation discrimination and that part of his case should not have been dismissed. The U.S. Court of Appeals for the Second Circuit recently signaled that it might overrule its precedent holding that Title VII’s ban on sex discrimination does not include sexual orientation discrimination.

In late June, the EEOC filed a brief in support of Zarda’s estate, whose lawsuit has been unsuccessful so far. The EEOC argued that Title VII does indeed prohibit discrimination based on sexual orientation.

But then last week, the Trump/Sessions DOJ filed a brief in support of the employer, flat-out saying that the EEOC is wrong and that its authority is limited: “Although the [EEOC] enforces Title VII against private employers and it has filed an amicus brief in support of the employee here, the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.” There brews a bigger battle of a conflict of the Circuits Courts of Appeals on this very issue that will require U.S. Supreme Court intervention.

Common Sense Counsel: while the battle lines are drawn between Trump v Obama policy agendas, there is still no substitute for training your supervisors in effective and defensible termination and harassment prohibitions in all forms - to include gender identification and sexual orientation. Also, the new claim of “failing to conform to gender stereotypes” appears to be gaining traction in the 11th Circuit Court of Appeals.

Specifically, train your supervisors not to use lose words like “attitude” or “company culture” or “sexuality” or similar phrases that lack defined meaning in employment law, as the courts may assign meaning you do not like. Train all employees that it is about respect in the workplace and being able in work with others in a civil and cooperative manner are essential job functions. In fact, make respectful behavior part of your statement of values. And update your harassment prevention/professional conduct policy, investigative notebook and training updated to include all forms of disrespectful and protected status individuals.  


Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. Robin Shea, one of Tommy’s Partners featured part of this story in a recent Constangy blog post. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Thursday, July 27, 2017

Federal Government Has New Weapons to Help Employers Keep Trade Secrets



By: Thomas Eden


Federal Government Has New Weapons to Help Employers Keep Trade Secrets

Robert O’Rourke worked for an undisclosed Woodstock, Wisconsin based manufacturer of cast-iron products since 1984 as a plant metallurgist, quality assurance manager and salesperson. He also helped his company develop international business in Jiangsu, China, which manufacturer also sold and manufactured continuous cast-iron products.

On August 12, 2015, O’Rourke advised his employer that he intended to resign, but failed to disclose that he had accepted employment as the vice president from the Jiangsu, China based cast iron employer. O’Rourke allegedly then downloaded electronic data from his employer’s secure internal computer network without authorization which included trade secrets belonging to his employer.  O’Rourke resigned from his company two days later.

On August 22, 2015, O’Rourke purchased a ticket for a flight to China. At his O'Hare International departure gate on September 21, 2015, he was in possession of his former employer’s trade secrets when federal authorities seized the stolen electronic data and stolen paper documents from O’Rourke.

O’Rourke’s Federal Criminal Case, in which the indictment was filed this week, is one of the very first brought under the The Defend Trade Secrets Act (“DTSA”), signed into law by President Obama in 2016. It applies to any misappropriation of trade secrets. With this new law Companies that are victims of trade-secret theft now have a federal alternative to bringing a civil action to enjoin violations of trade-secret theft and to seek a remedy for violations that already have occurred. DTSA actions are prosecuted by the U.S. Attorney’s Office as a Criminal Prosecution.

O’Rourke’s indictment ordered him to turn over a two-terabyte external hard drive which was in his possession as he sought to board his flight to China. The federal court indictment accused him as follows:

“Robert O’Rourke, defendant herein, with intent to convert a trade secret that as related to a product and service used in and intended for use in interstate and foreign commerce…to the economic benefit of a person other than the trade secret’s owner, and knowing and intending that the offense would injure any owner of that trade secret, knowingly did possess and attempt to possess such information, knowing the information to have been stolen and appropriated, obtained and converted without authorization,” the indictment read.

Common Sense Counsel: For companies with multi-state operations, and even for companies with single-state operations but whose trade secrets are portable across state lines (by hard copy documents or electronically), the DTSA affords a new weapon to protect trade secrets nationwide. In addition, because trade secrets litigation often involves violations of non-competition or non-solicitation agreements, such claims also may be brought in federal court in tandem with the alleged DTSA violation. Finally, all agreements with non-disclosure, confidentiality, trade secrets provisions must include DTSA language to take full advance of all its protections. While you are at it, good idea to include undated 2016 Alabama Non-Compete language, work for hire patent language, electronic access restrictions and build a comprehensive strategy to protect all your intellectual property accessible to employees. Finally, the federal government has delivered to employers a sharp new shinny weapon to help keep trade secrets – secret.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law. He can be contacted at teden@constangy.com or 334-246-2901 with blog at www.alabamaatwork.com.