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Thursday, September 26, 2013

Biometric Hand Scanner causes "Mark of the Beast" Lawsuit

by Tommy Eden

Consolidation Coal Company in West Virginia installed an attendance tracking system for payroll purposes at their Robinson Run Mine that requires employees to electronically sign-in using a biometric hand scanner. This technology creates and stores electronic information about an individual’s hand geometry for purposes of future identification.

Employee Beverly Butcher is an Evangelical Christian with 35 years of service at the Mine. When faced with the biometric logging in, he stated that he had a genuinely held religious belief that would not permit him to submit to biometric hand scanning.

Butcher then provided his manager with a letter that he wrote discussing his genuinely held religious beliefs about the relationship between hand scanning technology and the Mark of the Beast and antichrist discussed in the Bible, and requested exemption from hand scanning because of his religious belief.

His managers later responded by handing Butcher a letter written by its scanner vendor, Recognition Systems, Inc., addressed to “To Whom it May Concern.” The vendor’s letter discussed the vendor’s interpretation of Chapter 13, Verse 16 of the Book of Revelation contained in the Bible; pointed out that the text of that verse references the Mark of the Beast only on the right hand and forehead; and suggests that persons with concerns about taking the Mark of the Beast “be enrolled” with their left hand and palm facing up. The letter concludes by assuring the reader that the vendor’s scanner product does not, in fact, assign the Mark of the Beast.

Butcher proposed that he continue submitting his time and attendance manually as he had previously done, or that he be permitted to check in and check out with his supervisor.

At a later meeting, his managers proposed that Butcher should submit to hand scanning of his left hand turned palm up rather than his right hand. Butcher rejected their offer stating that he is prohibited by his religion from submitting to scanning of either hand. The managers declined to accommodate Butcher’s request to be exempted from the biometric sign-in telling him that he would be subject to disciplinary action if he refused to use the biometric hand scanning system.

Butcher promptly retired and specifically informed his managers that he was retiring involuntarily, telling them that he was retiring under protest and felt that he had no choice but to retire because of their refusal to grant an exemption from biometric hand scanning.

At least two persons employed at the Robinson Run Mine at the time that Butcher requested religious accommodation were permitted exemptions from biometric hand scanning due to missing fingers. These two persons were permitted to submit their time and attendance by other means.

Butcher then filed an EEOC charge claiming religious discrimination which the EEOC then took on as their own cause and filed suit in West Virginia U.S. District Court alleging religious discrimination under Title VII of the Civil Rights Act of 1964.  The case is U.S. Equal Employment Opportunity Commission v. Consol Energy Inc.

Common Sense Counsel: A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his/her religion and still work. An employer might accommodate an employee's religious beliefs or practices by allowing flexible scheduling, voluntary substitutions or swaps, or modification of login requirements.  Religious discrimination is a hot button issue for the EEOC. Have a well drafted employee handbook, dress code, job description with essential functions and be in an “accommodating” mood when employees approach you quoting scripture. Engaging in a bible sword drill with your employees in the interactive meeting is not a wise strategy. 

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 or 334-246-2901. Blog at

Friday, September 20, 2013

Facebook 'Like' is Protected Speech

by Tommy Eden

Six deputies were not reappointed after Hampton, Va., Sheriff B.J. Roberts won reelection in March 2011. Each had clicked the Facebook's “Like” button for his opponent Jim Adams. The deputies claimed they were let go, or not reappointed, for supporting rival candidate Adams for the sheriff's job in violation of their First Amendment right to free speech. 

On September 18 the Fourth Circuit Court of Appeals ruled that clicking Facebook's “Like” button is speech covered by the First Amendment. The panel rejected the lower court's conclusion that “liking” a Facebook page was insufficient to merit constitutional protection.

The Fourth Circuit said that the deputies conduct in “liking” the campaign page of sheriff candidate Jim Adams qualified as speech and that expressing support for something via the like button was “itself a substantive statement…. the fact that such a message of support is communicated through a single mouse click rather than typed out through several individual keystrokes doesn't matter,” the court said.

“Liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it. In this way, it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech,” the 4th Circuit panel held.

The case had amicus briefs from the American Civil Liberties Union, the National Association of Police Organization and Facebook Inc.  Facebook argued that liking a page is “core speech” and warranted constitutional protection. The Case is Bobby Bland v. B.J. Roberts in the U.S. Court of Appeals for the Fourth Circuit.

Common Sense Counsel: The 4th Circuit’s decision may also be a guide for how the NLRB will handle the question of whether an employee clicking the “like” button is protected concerted activity under the National Labor Relations Act. This case is a clear warning to any employer, public or private, who might want to minimize the expressive value of a “like” or similar social media action. Pressing a 'like' button is a statement, and if two employees are making a statement, the NLRB could consider that to be protected concerted activity.

An employer’s social media policy should clearly define the limitations upon employees’ work-related use of social media channels requiring: (1)  employees to identify their association with the employer whenever an employee is using social media to comment upon the employer’s products or services; (2) unless an employee’s blogging or online postings are officially sanctioned and reviewed by the employer, the employee should be required to use conspicuous disclaimers that his or her views do not represent the views of the employer; (3) cover issues such as the use of photographs and names of co-employees or customers; and (4)  employees should be reminded of the employer’s right to lawfully and respectfully monitor their social media postings and other online activities for compliance with the employer’s policies, but be careful in your policy not to restrict employees’ right to engage in “protected concerted activity” under the National Labor Relations Act.

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 or 334-246-2901. Blog at

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Friday, September 6, 2013

11th Circuit Stings ASU over Racial & Sexual Slurs

The 11th Circuit Court of Appeals opening comments in its September 3 opinion in the case of Jacqueline Weatherly, et al v. Alabama State University (ASU) are chilling: “The facts of this case should greatly concern every taxpaying citizen of the State of Alabama, especially because it involves a public institution largely funded with tax dollars paid by the people of Alabama.”

The appeal stemmed from complaints by three former employees of Alabama State University (“ASU”), who alleged they were subjected to a racially and sexual hostile work environments and retaliation at the hands of two ASU senior officials. Following a jury trial verdicts were rendered in favor of Jacqueline Weatherly ($309,453.06), Lydia Burkhalter ($376,509.65), and Cynthia Williams ($392,648.23). Dr. John Knight, executive vice president and chief operating officer as well as a state legislator, and LaVonette Bartley, associate executive director in the Office of the Special Assistant to the President, were the ASU senior officials.  Weatherly and Williams are African-American, and Burkhalter is biracial (part African-American, part Caucasian). Bartley and Knight are also African-American.

The 11th Circuit Panel apologized in footnote 1 “for the offensive and demeaning language contained in its opinion, but such language comes directly from the trial record.” Some of the offensive remarks were: “Bartley routinely made comments in Weatherly’s presence like, “I’m tired of n__ shit” and would mockingly refer to ASU’s mass transportation as the “n__ bus line.” “Bartley’s abusive conduct was also aimed at Burkhalter’s family, as she called Burkhalter’s seven-year-old son “a n__,” upsetting him so much that he crawled under his mother’s desk and curled up in the fetal position.”

“Bartley described Burkhalter’s breasts as “melons” and her derrière as “hams,” and Bartley commented on Burkhalter’s thong underwear and its accompanying panty lines in the presence of another employee…and that maybe she should make [Burkhalter] strip to see how many other tattoos [she] had and where.” Bartley also made comments to Williams such as, “talk to the n__ side of the hand because the white side does not want to hear it.”

Knight also made awkward and inappropriate requests, asking Burkhalter to dance for him the way she had danced at a party. On Burkhalter’s birthday, Knight called her after work and asked “what the “wildest thing” she could do for her birthday would be and told her to think of a “special thing” she wanted for her birthday and tell him.”

Knight threatened retribution for ASU employees who cooperated with the EEOC in their investigation of Weatherly’s EEOC Charge, warning that “no one was to speak with EEOC and that if they did, they would be dealt with. Terminated.” All three employees verbally and in writing reported the incidents to ASU Human Resources and requested transfers. An HR official responded that nothing could be done. All three were eventually fired.

Common Sense Counsel: I have learned in my years of conducting harassment investigations to not be shocked - but this opinion comes as close as any. Allowing comments, or conduct based on race or sex can create an intimidating, hostile or offensive work environment even among those of the same race and sex. Having a legally compliant anti-harassment policy, annual employee wide training, prompt and effective investigation of complaints by an outsider and taking proper remedial actions are keys to good risk reduction. A link to the full text of the 11th Circuit opinion is provided and is absolutely shocking.

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 or 334-246-2901. Blog at