Search This Blog

Wednesday, June 29, 2011

Subway Manager Engaged in Intentional Pregnancy Discrimination



Alabama@Work
By Tommy Eden, Attorney

Belinda Murillo applied for a position at a Subway in Central Phoenix in May 2006. Later that month, when Murillo returned to check on the status of her application, the general manager told her, “You’re pregnant. We can’t hire you.” The general manager admitted in sworn testimony that he had made that statement.

In EEOC v. High Speed Enterprise, Inc, dba Subway, the EEOC filed suit against the Subway’s owner, Phoenix-based Highspeed, Inc., after first attempting to reach a pre-litigation settlement through its conciliation process. Pregnancy discrimination violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978.

On June 29 in Phoenix a federal judge ruled yesterday that a Phoenix Subway fast-food restaurant violated federal law when it refused to hire a female job applicant because she was pregnant. The judge ruled that “A plaintiff may establish her case through direct or circumstantial evidence … Direct evidence is evidence, which if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions … [the EEOC] has provided direct evidence of discrimination.”

The court agreed with the EEOC, without the need to go to a jury trial that Subway engaged in intentional sex and pregnancy discrimination. The court found that Subway failed to offer any legal explanation as to why Murillo’s application was denied. The case will now go to a jury trial on damages. The EEOC is seeking back pay, compensatory damages, punitive damages and appropriate injunctive relief.

Common Sense Counsel: Pregnancy discrimination remains a persistent problem in the 21st century workplace according to the EEOC. Employers cannot refuse to hire women simply because they are pregnant, and women should never be forced to choose between motherhood and their livelihood, especially in these difficult economic times. The action of this Subway manager is outrageous. This is lack of training or policy or both. Don’t be the employer of a manager with his hair on fire.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, P.C. 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 tme@chlaw.com or 334-501-1540.

Georgia Immigration Decision a Blueprint for Alabama


Alabama@Work
By: Tommy Eden, Attorney

On June 27 Federal District Judge Thomas Thrash issued a temporary restraining order putting on hold some of the most controversial parts of Georgia's new anti-illegal immigration law. The American Civil Liberties Union and other civil and immigrant rights groups are suing to block the law and the Judge agreed that they have shown they are likely to succeed in arguments that these provisions are preempted by federal law. The Judge left intact the part of the law which would require many Georgia businesses to shortly begin using the federal E-Verify system for all new hires. That system helps companies ensure their newly hired employees are eligible to work in the United States.

Judge Thrash’s decision temporally halts two sections of the law that were to go into effect Friday, July 1. The first, empowers police to investigate the immigration status of suspects who they believe have committed state or federal crimes and who cannot produce identification, such as a driver’s license, or provide other information that could help police identify them. The second, would punish people who, while committing another offense, knowingly transport or harbor illegal immigrants or encourage them to come here. These are almost identical to the Alabama bill signed by Governor Bentley. See Top 10 DO’S and DON’T for Employers under the Alabama Immigration Act.

This is the fourth time parts of various state immigration enforcement laws have been put on hold since last year. Federal Judges in Arizona, Indiana and Utah have halted similar laws in those States following constitutional challenges; and Alabama and South Carolina are in the ACLU crosshairs.

On May 26, the United States Supreme Court in CHAMBER OF COMMERCE OF UNITED STATES OF AMERICA v. WHITING gave the green light to states to mandate the use of E-Verify by employers and punish non compliance with the suspension of business licenses.

Common Sense Counsel: without questions all Alabama Employers will have to comply with the E-Verify requirements of the Alabama Immigration Law so today:
• Enroll in E-Verify at https://e-verify.uscis.gov/enroll/StartPage.aspx?JS=YES
• E-Verify is an Alabama employer’s only get out of jail card with Immigration Compliance and Enforcement (ICE) and the Alabama business penalties;
• Schedule I-9 Supervisor Training because the E-Verify system is only as good as the information collected on your I-9 forms;
• Schedule Do & Don’t under the Alabama Immigration Law Training for Supervisors
• Put an E-Verify policy in your employee handbook; and
• Make sure you are using the latest version of Form 1-9.

Tommy Eden is a Lee County native and attorney with Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law, and presented throughout the State of Alabama on Immigration Workplace Compliance and also to the Governor’s Commission in 2008. Tommy can be contacted at tme@chlaw.com or 334-501-1540 and a more detailed summary of the Alabama Immigration Act is at www.alabamahrlaw.com

Monday, June 27, 2011

Crime Lab Testimony; no Substitute for Being There


By Tommy Eden, Attorney, Capell & Howard, P.C.

Donald Bullcoming was arrested on suspicion of driving while intoxicated and at his trial in New Mexico prosecutors presented a crime lab report showing that his blood-alcohol levels were elevated. However, prosecutors did not call the analyst who had prepared and signed the report. Rather, they told the trial court that he was on unpaid leave for unspecified reasons and presented a colleague who had neither observed nor reviewed the analysis.

In Bullcoming v. New Mexico, No. 09-10876 on June 23, the United States Supreme Court reversed holding that surrogate laboratory crime report testimony would not do. Crime reports may not be used against criminal defendants at trial unless the analysts responsible for creating them gives testimony and subject themselves to cross-examination. The High Court ruled that a substitute was unacceptable under the Sixth Amendment’s confrontation clause which gives a criminal defendant the right “to be confronted with the witnesses against him.”

Justice Kennedy wrote in his dissent: “Requiring the state to call the technician who filled out a form and recorded the results of a test is a hollow formality, and the cost of the requirement that the original analyst testify is enormous,” citing statics provided to the court in supporting briefs from prosecutors showing that each “blood-alcohol analyst in California processes an average of 3,220 cases annually and the Los Angeles Police Department’s 10 toxicologists spent 782 hours at 261 court appearances in a recent year.”

Justice Ginsburg countered the dissent and extolled the value of cross-examination in an area in which “the risk of human error is not so remote as to be negligible” and pointed to a report that a single crime lab in Colorado “produced at least 206 flawed blood-alcohol readings over a three-year span.” It was also noted that New Mexico may have solved the problem of the absent analyst by having the sample retested under the supervision of a colleague available to testify. Also substitute testimony may also be allowed from “a supervisor, reviewer or someone else with a personal, albeit limited, connection to the scientific test at issue.”

Common Sense Counsel: this case will have a far reaching impact in the presentation of evidence at trial in the field of criminal forensics. It is critical that the person who is to give live testimony have a personal connection to the scientific test at issue. The best practice, according to the Court, is to have the sample retested under the supervision of a colleague available to testify. I also believe that the impact of this case will bleed over onto the civil side or into benefits denials. According, the came “personal connection to the scientific test” steps should be taken when a surrogate must be used to give trial testimony.

Tommy Eden is a Lee County native, an attorney with the Capell & Howard, P.C. 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 and SAPAA Board Member. He can be contacted at tme@chlaw.com or 334-501-1540.

Thursday, June 23, 2011

Unionization through Regulation


Alabama@Work
By: Tommy Eden, Attorney

NLRB Proposes “Quickie” Union Elections The National Labor Relations Board proposed on June 22 a new rule to dramatically shorten the length of the union election process. Most union elections currently take place within 56 days of union election petition being filed. The new rules being proposed shortens this timeframe to as little as 14 days after a union election petition has been filed. Submit comments at www.nlrb.gov.

DOL Proposes New “Persuader Activity” Regulations The Department of Labor announced proposed rulemaking on “persuader activity.” This new rule seeks to “clarify” what type of employer activity is to be considered “persuader activity” that would need to be reported to the Department of Labor. Currently, employers and their attorneys are exempted to disclose any type of labor law advice that they receive from their outside counsels.

• Persuader activity would include providing material to employers, coordinating or directing the activities of supervisors or employer representatives to engage in the persuasion of employees;

• Persuader activity would include the drafting or implementation of policies for the employer that have an object to persuade employees, when an attorney “prepares or provides a persuasive script, letter, videotape, or other material or communication, for use by an employer in communicating with employees, the “advice” exemption does not apply and the duty to report is triggered.”

Submit comments at www.dol.gov

NLRB Shooting down Dreamliner move to South Carolina On April 20, 2011, a complaint was then issued by the NLRB Acting General Counsel alleging that Boeing violated two sections of the National Labor Relations Act by “making coercive statements and threats to employees for engaging in statutorily protected activities, and by deciding to place the second line at a non-union facility, and establish a parts supply program nearby, in retaliation for past strike activity and to chill future strike activity by its union employees.” The complaint also alleges that Boeing’s actions were “inherently destructive of the rights guaranteed employees by Section 7 of the Act." The remedy being requested by the Union is to disallow Boeing to open a non-union Dreamliner production line in South Carolina. Call your Congressman.

Common Sense Counsel: the Obama Administration’s finger prints are all over the NLRB/DOL steering wheel. Employers would be ambushed in a quickie elections; limiting the ability of employees to make an informed decision on union membership based on information from both their employer and a labor union. The persuader activity rule will negatively impact the ability of manufacturers to consult with attorneys in order to comply with existing labor laws. Get your Union Avoidance training done before the government regulations gag you.

Tommy Eden is a resident of Auburn, an attorney with the local office of Capell & Howard, P.C. 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 tme@chlaw.com or 334-501-1540 and links at www.alabamahrlaw.com

IRS Increases Auto Mileage Reimbursement Rate to 55.5¢


The Internal Revenue Service has published a midyear hike in the standard mileage rate employers can use to reimburse employees who drive their owned or leased automobiles for business purposes. Effective July 1, 2011, the standard mileage reimbursement rate jumps to 55.5 cents per mile, up from 51 cents per mile for the first half of 2011 and 50 cents per mile for 2010. By using the standard rate, employers can eliminate the need for employees to record actual mileage expenses.

Thursday, June 16, 2011

OSHA hits Phoenix City, Alabama Lumber Co. with 1.9 Million Proposed Fine


Alabama@Work
Tommy Eden, Attorney

The U.S. Department of Labor's Occupational Safety and Health Administration on June 16 proposed penalties of $1,939,000 to the Phenix Lumber Co. and its principal, John M. Dudley, for egregious and other safety violations, including exposing employees to amputation and fall hazards.

Phenix Lumber and Dudley have 15 business days from receipt of the citations and proposed penalties to comply, request a conference with OSHA's area director or contest the findings before the Occupational Safety and Health Review Commission. The work site was inspected by OSHA's Mobile Area Office. Prior to these citations, Phenix Lumber had been cited 77 times by OSHA for serious safety and health violations since 2007.

OSHA began an inspection on Dec. 15, 2010, in response to a complaint that employees working in the planer mill were exposed to amputation hazards while maintaining, cleaning and clearing jams on pieces of machinery that did not have their energy sources locked out to prevent their unexpected start up. Two months later, OSHA received a second complaint that an employee had suffered a partial finger amputation while clearing a piece of machinery that had not been locked out. At the opening of an inspection following the second complaint, the compliance officer learned of another employee who had just suffered a severe hand injury while working on unguarded machinery. Phenix Lumber had been cited numerous times during the past four years for allowing employees to work on unguarded machinery while it was operating.

OSHA has issued Phenix Lumber 13 citations for 24 willful violations, including failure to properly shut down and lock out 13 pieces of machinery before employees were required to perform tasks such as clearing jams and cleaning. These failures exposed employees to amputation hazards, as well as to the possibility of being caught between or struck by pieces of the machinery and falling lumber. The employer also failed to train 11 employees who performed this work on the hazards and how to shut down and lock out the machinery so that they could perform their tasks safely. OSHA proposed the maximum $70,000 penalty for each violation, totaling $1,680,000.

Citations for three additional willful violations allege that a worker was exposed to fall hazards while working from the top of a machine, locks were not issued to employees as required by the lockout standard, and the company failed to follow established lockout/tagout procedures. These citations carry additional penalties of $70,000 each, for a total of $210,000.

A willful violation is one committed with intentional knowing or voluntary disregard for the law's requirements, or with plain indifference to worker safety and health. OSHA may propose separate penalties for distinct willful violations of the same OSHA standard where one or more of the seven criteria are met as identified in the OSHA directive "Handling of Cases to be Proposed for Violation-By-Violation" (compliance directive 02-00-080). The criteria include that the employer's conduct taken as a whole amounts to clear bad faith in the performance of duties under the Occupational Safety and Health Act.

One citation for a repeat violation with a $35,000 fine was issued for failing to place machine guards on seven chains and sprockets. A violation is "repeated" if the employer previously was cited for a substantially similar condition, and the citation is a final, affirmed order of the independent Occupational Safety and Health Review Commission. This time is the third within three years that Phenix Lumber has been cited for failing to guard this type of equipment.

Citations for two serious violations, each with a maximum proposed penalty of $7,000, were issued for failing to guard a pinch point at a hydraulic pusher plate, which exposed employees to amputation hazards and caused one of the injuries; and to ensure that employees performing lockout/tagout tasks applied and removed their own locks. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.

Copies of the citations are available at http://www.osha.gov/dep/citations/MDLGPhenixLumber315135954.pdf* and http://www.osha.gov/dep/citations/MDLGPhenixLumber315111930.pdf*.

OSHA has proposed that the employer be included in the agency's Severe Violators Enforcement Program. Initiated in 2010, the program is intended to focus on employers that endanger workers by committing willful, repeat or failure-to-abate violations in one or more of the following circumstances: a fatality or catastrophe; industry operations or processes that expose workers to severe occupational hazards; exposure to hazards related to the potential releases of highly hazardous chemicals; and all instance-by-instance enforcement actions under compliance directive 02-00-080. Inclusion in the program subjects employers to mandatory follow-up inspections; increased company/corporate awareness of OSHA enforcement; and, where appropriate, corporate-wide agreements, enhanced settlement provisions and federal court enforcement under Section 11(b) of the OSH Act. More information at http://www.osha.gov/dep/svep-directive.pdf.

Common Sense Counsel: It is advised that you have a comprehensive safety audit conducted ASAP. The next time OSHA “comes to help you” the cost of being in the wrong just went up.

Tommy Eden is a resident of Auburn, an attorney with the local office of Capell & Howard, P.C. 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 tme@chlaw.com or 334-501-1540.

Saturday, June 11, 2011

Union gets Third Bite at Alabama Shipbuilder because of Unfair Labor Practices during Campaign


Alabama@Work
By: Tommy Eden, Attorney

The Local 441 of the Sheet Metal Workers International Association is getting a third bite at the apple to enlist workers at Austal USA's Mobile River shipyard in an NLRB conducted election late July. Two previous, unsuccessful NLRB conducted elections were vacated by the NLRB who found that the company engaged in unfair labor practices with respect to the organizing effort.




For details of misconduct found, see Board decision at Austal USA 356 NLRB No. 65 or the full newspaper story out to Mobile.

Common Sense Counsel: Taking the following 7 steps can help your company avoid be an easy target for a slick talking union organizer: 1) let your employees know how you feel about a union in your employee handbook; 2) don't be afraid to send a letter home to employees reiterating your position; 3) check your no solicitation, no distribution policies for legal compliance and property signage; 4) train your supervisor on appropriate and legal union avoidance steps (TIPS) within the law; 5) make sure your managers and supervisors are being good coaches by showing appreciation for the hard work of employees, involving them in decisions and helping to promote their career path; 6) ask your employees what you can do better with regards to safety, working conditions, communication etc – then do it.; and 7) take affirmative steps to reduce the risk of harassment, favoritism, retaliation and anything else that would hinder a respectful working environment.

Tommy Eden is a resident of Auburn, an attorney with the local office of Capell & Howard, P.C. 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 tme@chlaw.com or 334-501-1540.

OSHA Proposes to Fine Alabama Korean Auto Parts Manufacturer $179,000


Alabama@Work
Tommy Eden, Attorney

OSHA alleges in its citation issued June 6 that the Company failed to make corrections after 2009 OSHA inspection



Saehaesung Alabama Inc. in Andalusia has been cited for eight safety violations by the U.S. Department of Labor's Occupational Safety and Health Administration. The citations, carrying fines of $179,300, were issued after OSHA conducted a follow-up inspection to evaluate the abatement of violations found during 2009.

The company, whose parent company is in Korean, manufactures automotive chassis and body parts for Hyundai and Kia, has 15 business days from receipt of the citations and proposed penalties to comply, request a conference with OSHA's area director or contest the findings before the independent Occupational Safety and Health Review Commission. The site was inspected by OSHA's Mobile Area Office.

Saehaesung Alabama has been cited for two willful violations with fines of $140,000 for failing to develop, document and utilize lockout/tagout procedures for energy sources, and to provide workers with the knowledge and skills necessary for safe usage and removal of energy control devices. A willful violation exists when an employer has demonstrated either an intentional disregard for the requirements of the law or plain indifference to employee safety and health.

OSHA also has issued the company one repeat citation with a $16,500 penalty for not providing training and information to employees on hazardous chemicals. A repeat violation exists when an employer previously has been cited for the same or a similar violation of a standard, regulation, rule or order at any other facility in federal enforcement states within the last five years. This location was cited for the same hazardous communication violation in 2009.

Additionally, four serious citations with $22,800 in penalties were issued for allowing employees to work where exit routes were partially blocked, permitting alloy slings without permanent affixed identification for size, grade, rated capacity and reach, using worn and damaged alloy steel chain slings, and failing to use safety blocks while adjusting dies in the mechanical power press. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.

The company received one other-than-serious citation with no proposed penalty for not maintaining inspection records for the mechanical power press. An other-than-serious violation is one that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm.

OSHA found that this case meets the criteria for OSHA's Severe Violators Enforcement Program. Initiated in the spring of 2010, the program is intended to focus on employers that endanger workers by committing willful, repeat or failure-to-abate violations in one or more of the following circumstances: a fatality or catastrophe; industry operations or processes that expose workers to severe occupational hazards; exposure to hazards related to the potential releases of highly hazardous chemicals; and all per-instance citation (egregious) enforcement actions. Enforcement actions for severe violator cases include mandatory follow-up inspections, increased company/corporate awareness of OSHA enforcement, corporate-wide agreements, where appropriate, enhanced settlement provisions, and federal court enforcement under Section 11(b) of the Occupational Safety and Health Act. For more information about the program, visit http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=4503.

Common Sense Counsel: It is advised that you have a comprehensive safety audit conducted ASAP. The next time OSHA “comes to help you” the cost of being in the wrong just went up.

Tommy Eden is a resident of Auburn, an attorney with the local office of Capell & Howard, P.C. 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 tme@chlaw.com or 334-501-1540.

Top-10 Dos and Don’ts during OSHA Inspections:



(Two OSHA inspectors provided these tips at the American Society of Safety Engineers’ 2010 annual conference.)










1.Don’t make me wait. It just tells me you’re not ready. Nothing you can do at the last minute is going to make much difference anyway.

2.It’s best to be open with me.

3.Don’t try to block my line of site by bringing a bunch of employees along on the walk-through. I’ll wait until I get to see what I want to see. Some of us use digital cameras. Some of us even videotape the inspection.

4.Be prepared to answer questions. Have all required OSHA documents, including those outlining safety plans, ready for me.

5.Don’t discourage employees from talking to me. I’ll talk to them one way or another. I find ways to slip employees my business card, and once I do, they usually call. If necessary, I’ll get a subpoena to talk to your employees.

6.Don’t lie to me. That makes me angry.

7.Think about hazards, not just standards, when you evaluate your workplace for safety. I look for hazards, not standard violations.

8.Have your training documents in order. I do look at them. If you have Hispanic employees, make sure you have documentation that they understood your safety training.

9.Plan ahead and designate a person or people who will meet with me. Make sure the person is prepared. It doesn’t matter to me whether you have a full-time safety manager or not. That doesn’t make me any tougher or easier on a company.

10.Check out OSHA’s Field Operations Manual for inspectors. Even though it’s written for inspectors, it’s available to anyone for free on the OSHA website (you can download a PDF here). It’s a great resource to prepare any company for the possibility of an OSHA inspection.

Friday, June 10, 2011

Top 10 DO’S and DON’T for Employers under the Alabama Immigration Act


Alabama@Work
By: Tommy Eden, Attorney

On June 9, 2011, Alabama Governor Robert Bentley signed into law the Beason-Hammon Alabama Taxpayer and Citizen Protection Act (the “Act”). This is a sweeping Act to crack down on illegal immigrants that both supporters and opponents call the toughest of its kind in the country, going well beyond a 2010 Arizona law that caused an uproar and was appealed to the U.S. Supreme Court. The Alabama Act is generally effective September 1, 2011. Several of the new provisions govern employers and impose significant new obligations. The following list is a Do’s and Don’t summary of the employer obligations contained in the 70 page Act:

1. Don’t knowingly employ, hire for employment, or continue to employ an unauthorized alien to perform work within the State of Alabama.
You must verify the status of every new employee through the federal E-Verify procedures and fire unauthorized aliens.

2. Do enroll in E-Verify. Each and every business entity or employer must enroll in E-Verify to verify the employment eligibility of every new employee no later than April 1, 2012. E-Verify provides a safe harbor so that an employer who uses the E-Verify system “shall not be deemed to have violated [Section 15] with respect to the employment of that employee.” A business entity or employer that uses E-Verify to verify the status of an employee in good faith “and acts in conformity with all applicable federal statutes and regulations is immune from liability under Alabama law for any action by an employee for wrongful discharge or retaliation based on a notification from the E-Verify program that the employee is an unauthorized alien.” Do schedule Form I-9 Supervisor Training because the E-Verify system is only as good as the information collected. Do put an E-Verify policy in your employee handbook and make sure you are using the latest version of Form 1-9. Do have an outside audit done of your Form I-9s and Immigration Practices. E-Verify is an employer’s only get out of jail card with Immigration Compliance and Enforcement (ICE) and the only safe harbor under the Alabama Immigration Act.

3. Do terminate any employee if you become aware of their illegal status. The employer could face severe penalties involving probation and suspension of business license.

4. Don’t deduct from state income or business taxes any wages, compensation or remuneration of any kind, whether monetary or otherwise, for services paid to an unauthorized alien. A business entity or employer who knowingly fails to comply will be liable for a penalty equal to 10 times the business expense deduction claimed.

5. Don’t discriminate. An employer may be liable for failure to hire a job applicant who is a United States citizen, or who is an alien authorized to work in the United States, while retaining any employee who the employer knows, or reasonably should have known, is an unauthorized alien. The employer can be sued by the unsuccessful applicant in an Alabama civil action for discrimination under Section 17 and awarded compensatory relief, court costs and reasonable attorney’s fees.

6. Don’t enter into contracts with illegal aliens. The Act provides that no court shall enforce the terms of, or otherwise regard as valid, any contract between a party and an alien unlawfully present in the United States.

7. Don’t pick up day labor in your vehicle. The Act makes it illegal to stop a vehicle on a street, roadway or highway “to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.” This applies regardless of citizenship or alien status.

8. Don’t house an illegal alien. It is illegal to “conceal, harbor, or shield” an alien from detection in any place, including any building or vehicles, if the person knows or recklessly disregards that the alien is illegal in United States. Similarly, it is illegal to induce an alien to come to or reside in Alabama if the person knows or recklessly disregards the fact that the alien will be in violation of federal law.

9. Don’t transport an illegal alien. It will be illegal to transport an alien “in furtherance of the unlawful presence of the alien in the United States, knowingly or in reckless disregard to the fact that the alien has come to, entered, or remained in the United States in violation of federal law.”

10. Don’t rent to an illegal alien. It is illegal to harbor an unlawful alien by entering into a rental agreement with the alien, if the person knows or recklessly disregards the fact that the alien is in the United States illegally.

Alabama Immigration Law Does and Don't PPT on slideshare on my Linkedin profile page. Any Associations who need help can contact me

Tommy Eden is a Lee County native and attorney with Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law, and presented throughout the State of Alabama on Immigration Workplace Compliance and also to the Governor’s Commission in 2011. Tommy can be contacted at tme@chlaw.com or 334-501-1540 and a more detailed summary of the Act is at www.alabamahrlaw.com

Thursday, June 9, 2011

Summary of Business Provisions of 2011 Alabama Immigration Act


By: Tommy Eden, Attorney
Will Cunningham, Attorney

On June 9, 2011, Alabama Governor Robert Bentley signed into law the Beason-Hammon Alabama Taxpayer and Citizen Protection Act (the “Act”). The Alabama Legislature passed HB 56 on June 1; a 70 page document which makes broad changes to the way Alabama deals with illegal immigrants and unauthorized aliens. Several of the new provisions govern private businesses and employers and impose significant new obligations, as detailed below. Unless otherwise stated, all citations are to the Act.

We are pleased to provide this legal update to our clients and friends. At the end of this update see Common Sense Counsel which list steps all Alabama employers should start consider taking to prepare themselves for these mandated changes.

SECTION 15(a): EMPLOYMENT OF ALIENSSection 15 of the Act governs the employment of unauthorized aliens within the state of Alabama. Effective April 1, 2012, “[n]o business entity, employer, or public employer shall knowingly employ, hire for employment, or continue to employ an unauthorized alien to perform work within the State of Alabama.” SECTION 15(a) (emphasis added). To knowingly employ, hire for employment or continue to employ an unauthorized alien is to do so in violation of the Federal procedures set forth in 8 U.S.C. § 1324a(b)(1)-(3) for employee verification.

An “unauthorized alien” is any person who is not a citizen or national of the United States and who is not authorized to work in the United States pursuant to federal law. SECTION 3(1), (16). A “business entity” is any person or group of persons “engaging in any activity, enterprise, profession, or occupation for gain, benefit, advantage, or livelihood, whether for profit or not for profit.” SECTION 3(2). This includes self-employed persons, as well as traditional business entities. An “employer” encompasses any person or entity that employs another person in the State of Alabama, with the exception of a resident hiring domestic laborers. SECTION 3(5).


Section 15 expressly excludes “the relationship between a party and the employees of an independent contractor performing work for the party and does not apply to casual domestic labor performed within a household.” SECTION 15(l).

SECTION 15(b): E-VERIFY Each and every business entity or employer must enroll in E-Verify and use that system to verify the employment eligibility of every employee. SECTION 15(b). E-Verify refers to the federal electronic employment authorization verification system established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. § 1324a, and operated by the United States Department of Homeland Security. SECTION 3(7). The Alabama Department of Homeland Security shall create an E-Verify “employer agent service” for use by any business entity or employer with 25 or fewer employees. SECTION 26.

E-Verify provides a safe harbor so that an employer who uses the E-Verify system for each employee “shall not be deemed to have violated [Section 15] with respect to the employment of that employee.” Id. Furthermore, a business entity or employer that uses E-Verify to verify the status of an employee in good faith “and acts in conformity with all applicable federal statutes and regulations is immune from liability under Alabama law for any action by an employee for wrongful discharge or retaliation based on a notification from the E-Verify program that the employee is an unauthorized alien.” SECTION 26(d).

SECTION 15(c)-(f): PENALTIES Upon the first violation of Section 15(a) by a business entity or employer, a court shall do the following:
(1) order the termination of every unauthorized alien by the business entity or employer;
(2) place the business entity or employer on probation for three years, during which time the entity or employer shall file quarterly reports to the local DA regarding each new employee;
(3) order the business entity or employer file a signed, sworn affidavit with the local DA stating that every unauthorized alien has been terminated and no new unauthorized aliens will be knowingly or intentionally employed in the State of Alabama; and,
(4) direct the appropriate governing body to suspend the business license and permits of the business entity or employer for up to 10 business days in the location where the unauthorized alien worked;
SECTION 15(c). Before the business license or permits may be reinstated, the business entity or employer must submit a signed, sworn affidavit stating that it is in compliance, as well as a copy of its enrollment in the E-Verify program. SECTION 15(d)(1).

Note that a business entity or employer that terminates an employee to comply with the requirements of Section 15 is not liable for claims made by the terminated employee, “provided that such termination is made without regard to race, ethnicity, or national origin of the employee and that such termination is consistent with the anti-discrimination laws of this state and the United States.” SECTION 15(i).

A second violation requires the immediate revocation of all business licenses and permits for the location where the unauthorized alien performed work. SECTION 15(e). A subsequent violation shall result in the permanent suspension of the business license and permits throughout the state. SECTION 15(f).

By statute, there is an affirmative defense of entrapment by law enforcement officers. See SECTION 15(k). This defense is a last resort and is not recommended.

SECTION 15(k): PETITIONS TO ATTORNEY GENERAL Although normally the domain of local district attorneys, the Attorney General may bring a civil complaint for enforcement of the employment laws. SECTION 15(k). Any resident may petition the AG to bring an enforcement action by signed, written petition that alleges the specific violators, the actions constituting a violation, and the date and location of the violation. SECTION 15(k)(1). A petition alleging violation based on national origin, ethnicity or race is invalid. SECTION 15(k)(2).

SECTION 16: TAX DEDUCTIONS A business entity or employer may not deduct from its state income or business taxes any wages, compensation or remuneration of any kind, whether monetary or otherwise, “for the performance of services paid to an unauthorized alien.” SECTION 16(a). A business entity or employer who knowingly fails to comply with subsection (a) “shall be liable for a penalty equal to 10 times the business expense deduction claimed in violation of subsection (a).” SECTION 16(b).

SECTION 17: CAUSE OF ACTION FOR ALIEN DISCRIMINATION A business entity or employer may be liable for (i) failure to hire a job applicant who is a United States citizen or who is an alien authorized to work in the United States as defined in 8 U.S.C. § 1324a(h)(3) or (ii) discharge of an employee who is a citizen or authorized alien while retaining any employee who the business entity or employer knows, or reasonably should have known, is an unauthorized alien. SECTION 17(a).


Damages in a civil action for discrimination under Section 17 are limited to compensatory relief, court costs and reasonable attorney’s fees (up to the amount of the winning party’s own attorney’s fees). SECTION 17(b)-(c). No civil or criminal sanctions are applicable. SECTION 17(b).

SECTION 27: NO ENFORCEMENT OF
CONTRACTS WITH UNLAWFUL ALIENS
No court shall enforce the terms of, or otherwise regard as valid, any contract between a party and an alien unlawfully present in the United States, if
(1) the party had direct or constructive knowledge that the alien was unlawfully present in the United States at the time the contract was entered into; and,
(2) the performance of the contract required the alien to remain unlawfully present in the United States for more than 24 hours after the time the contract was entered into or performance could not reasonably be expected to occur without such remaining.

SECTION 27(a). Several exceptions exist to this rule: (a) contracts for lodging for one night; (b) contracts for the purchase of food to be consumed by the alien; (c) contracts for medical services; and (d) contracts for transportation to facilitate the return of the alien back to his or her country of origin. SECTION 27(b).

MISCELLANEOUS CRIMINAL SECTIONSSection 11 of the Act makes it illegal to stop a vehicle on a street, roadway or highway “to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.” SECTION 11(f). Similarly, it will be illegal for a person to enter such a vehicle in order to be hired. SECTION 131(g). Violations shall be a Class C misdemeanor and subject to a fine of not more than $500. SECTION 13(h).

Section 13 makes it illegal to “conceal, harbor, or shield . . . an alien from detection in any place in this state, including any building and any means of transportation, if the person knows or recklessly disregards the fact that the alien has come to, has entered, or remains in the United States in violation of federal law.” SECTION 13(a)(1) (emphasis added). Similarly, it is illegal to induce an alien to come to or reside in Alabama if the person knows or recklessly disregards the fact that the alien will be in violation of federal law. SECTION 13(a)(2).

It will be illegal to transport an alien “in furtherance of the unlawful presence of the alien in the United States, knowingly or in reckless disregard to the fact that the alien has come to, entered, or remained in the United States in violation of federal law.” SECTION 13(a)(3).


It will be illegal to harbor an unlawful alien “by entering into a rental agreement . . . with an alien to provide accommodations, if the person knows or recklessly disregards the fact that the alien is unlawfully present in the United States.” SECTION 13(a)94).

Violation of any provision of Section 13 is a Class A misdemeanor for each unlawfully present alien. SECTION 13(b). If the violation involves 10 or more unlawful aliens, the violation shall be a Class C felony. SECTION 13(c).

A solicitation, attempt or conspiracy to violate any criminal provision of the Act shall have the same penalty as a violation of the Act. SECTION 25(a).

Common Sense Counsel: all Alabama Employers should start getting ready today by taking the following steps now:

• Enroll in E-Verify at https://e-verify.uscis.gov/enroll/StartPage.aspx?JS=YES
• “Dos and Don’t Training” on the Alabama Immigration Act for all your supervisors and management level employees;
• E-Verify is an employer’s only get out of jail card under the Alabama Immigration Act and with Immigration Compliance and Enforcement (ICE);
• Schedule I-9 Supervisor Training because the E-Verify system is only as good as the information collected on your I-9 forms;
• Put an E-Verify policy in your employee handbook;
• Make sure you are using the latest version of Form 1-9; and
• Have an outside audit done of your Form I-9 and Immigration Practices.

Tommy Eden is an attorney with Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law, and presented throughout the State of Alabama on Immigration Workplace Compliance and also to the Governor’s Commission in 2008. He would like to thank Will Cunningham, an Associate at Capell & Howard, for his help in summarizing the Bill. Tommy can be contacted at tme@chlaw.com or 334-501-1540.

Thursday, June 2, 2011

App Assisted Wage Litigation


Alabama@Work
By: Tommy Eden, Attorney

Just when you thought it safe to be a small business owner, the U.S. Department of Labor (DOL) has announced the launch of its first Apple application for smartphones, a timesheet to help employees independently track the hours they work and determine the wages they are owed. Available in English and Spanish, users conveniently can track regular work hours, break time and any overtime hours for one or more employers. This new technology is significant because, instead of relying on their employers’ records, workers now can keep their own records. The DOL believes that this information “could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.” In fact, a Wage and Hour complaint can be emailed right off the links in the App.

The free app is currently compatible with the iPhone and iPod Touch. The DOL has stated that it will explore updates that could enable similar versions for other smartphone platforms, such as Android and BlackBerry, and other pay features not currently provided for, such as tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest.

For workers without a smartphone, the DOL Wage and Hour Division has a printable work hours calendar in English and Spanish to track rate of pay, work start and stop times, and arrival and departure times. The calendar also includes easy-to-understand information about workers’ rights and how to file a wage violation complaint.

Common Sense Counsel: with the U.S. Government again coming to help America’s small businesses (Ha Ha), it is time for a comprehensive Wage and Hour Compliance Review. This development is the latest challenge that employers’ face as the DOL seeks to promote employees suing their employee over wages. With the DOL’s new resources, employers can expect to face additional pressure from the government. Wage and hour compliance is one of the most difficult problems for employers. As employers try to stay competitive, employees may have a wider range of responsibilities causing the line between exempt and nonexempt employee classifications to blur. Alabama employers should conduct their own legal review of the following before a DOL compliance officer arrives “to help them:” classification of exempt, nonexempt, and independent contract workers;
• commissions, bonuses, incentive payments, and other compensation programs;
• overtime pay calculations;
• family and medical leave;
• recordkeeping requirements and DOL safe harbor employee handbook language;
• at the bottom of each pay period time record have each hourly employee sign this statement: “I affirm the above is a true and accurate record of all hours I worked during this pay period.”

Tommy Eden is a resident of Auburn, an attorney with the local office of Capell & Howard, P.C. 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 tme@chlaw.com or 334-501-1540.