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Sunday, March 22, 2015

Nicknames Can Be Costly


By Tommy Eden

Ali Aboubaker, a black Muslim man of Tunisian origin, worked for Washtenaw County, Michigan when his co-workers after the September 11, 2001 attack begin to playfully call him “terrorist” and “Osama.” They also occasionally interfered with his prayer time and commented on his head covering, claimed his lawsuit.

Then in 2008 Ali was denied an opportunity to interview for a position for which he felt he was very well-qualified and for which a less experienced nonunion applicant was hired. It turned out that he was not allowed to interview because his supervisor placed in his personnel file negative performance evaluations which mentioned that Ali kept a beard and wore a head covering for religious reasons.

In June 2008 Ali filed an EEOC Charge claiming that he was denied the interview promotion opportunity because of his race, nationality and religion. The County then chose to fire him a month later for legitimate grounds.

Ali’s EEOC Charge later transitioned into a federal court compliant in the Eastern District of Michigan. After a seven day jury trial, Ali received a verdict in his favor of 1.2 million dollars in economic and non-economic damages. Ali was able to show at trial that the negative evaluations by a supervisor that had been improperly placed in his personnel file along with nicknames constituted direct evidence of discriminatory animus (state of mind) to serve as evidence of race, nationality and religion discrimination. Ali was also able to show that he was a well qualified candidate who for years had been passed over for other positions in favor of mostly white candidates with similar or less experience.

In a jury trial of a discrimination claim there can be numerous pieces of direct evidence in the form of racial slurs or other derogatory nicknames used to show a racially discriminatory animus which management knew existed but did not stop or take corrective action.

This week a federal district judge looked at all the county had to offer and decided that there had been “presented sufficient evidence to support the jury's finding” and the verdict should stand in favor of Ali. She cited evidence of Ali's education and experience, compared to the individuals the county interviewed, evidence that another candidate who did not meet the minimum requirements was interviewed, and a county policy giving Ali consideration and preference as a union member.

Common Sense Counsel. Loose lips have sunk many a good and well-intentioned employer. Allowing nicknames, slurs of any type, or any form of disrespectful speech to go unchecked is a loaded EEOC charge just waiting for the spark of an adverse employment action. My mom always lived by the words “if you can’t say something nice about someone, just don’t say a thing.”  Remember that, and the $1.2 million Ali was awarded, when you let flaming tongues wag unchecked in your workplace.


Tommy Eden is a partner working out of the Constangy, Smith & Prophete, 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 and follow on twitter tommyeden3

Friday, March 13, 2015

Strip Club Dancers Big FLSA Winners

By Tommy Eden


Former exotic dancers Alexis Alex and Nicolette Prieto brought a Fair Labor Standards Act (FLSA) collective action lawsuit in 2013 against Tiffany's Cabaret in San Antonio, Texas alleging they had not been paid minimum wages and overtime compensation, and their tips had been misappropriated. 

Alexis and Nicolette claimed in their federal court complaint that they worked more than 40 hours per week on average but were paid well below half of their hours with no paid overtime, and that dancers were required to split their tips with other workers such as the DJ, bouncer and Tiffany’s Cabaret itself as a house fee.

On March 12 a San Antonio federal court jury sided with Alexis and Nicolette, awarding Alexis almost $61,000 for unpaid wages and misappropriated tips over a three-year period, while Nicolette was awarded almost $65,000. The jury verdict was in the form of a series of answers to questions such as, did the plaintiff prove: 1) that the club failed to pay minimum wages and misappropriated tips; 2) showed reckless disregard for its known FLSA obligations; 3) evidence of willfulness to justify the longer 3 year back pay period; 4) the exact amount of the unpaid wages; and 5) the exact amount of misappropriated tips. All of the jurors answers were in Alexis and Nicolette favor.

Alexis and Nicolette lawyers next argued that the club made no good faith effort to remedy their legal shortfalls, and should pay double in "liquidated damages." Over the objection of the club's lawyers, the federal judge agreed and doubled the total award to more than $250,000. That does not count attorney's fees and costs. The judge did agree with the club's lawyer that the shortcomings were likely due to bad advice from its accounting firm.

In a similar pending case in New York, it is alleged that Larry Flynt’s Hustler Club misclassified exotic dancers as independent contractors and misappropriated their tips. The Hustler club had a practice of printing monopoly type bills called “Beaver Bucks” that customers could buy to use as a form of payment or to tip the dancers with instead of cash. However, when dancers went to exchange the beaver bucks for actual cash, he Club took a portion of the tip value for itself so dancers were not getting their tips in full, the suit alleged. That case is pending.

Common Sense Counsel: FLSA violations are the most common and costly employment lawsuits whether you run a strip club or other type of service business. An ounce of prevention with a wage and hour audit is the only FLSA proven risk reduction strategy. The top most costly violations are: 1) Misclassification of Exempt Employees; 2) Not Counting Every Hour Worked for Hourly Employees; 3) Not Calculating Overtime Pay the FLSA Way; 4) Misclassification as Independent Contractors when they are truly employees; 5) Misappropriation of Tips; and 6) Requiring tipped employees to perform more than 20% of their workweek on work not related to the tipped occupation work.

Tommy Eden is a partner working out of the Constangy, Smith & Prophete, 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 and follow on twitter tommyeden3

Friday, March 6, 2015

Violation of Child Labor Laws Can Be Heartbreaking

By: Tommy Eden

Owner of John Wilkes Tree Service 


On August 13, 2013, 14-year-old Blake Bryant was working for John Wilkes Tree Service at a residential location in Middleburg Florida up a 71 foot pine tree when his climbing harness was severed, causing him to fall 49 feet to the dirt driveway below. Blake had climbed the pine tree and began to block off a 16 feet portion of the trunk, but due to the weight of the block, it reportedly began to fall faster than he anticipated.

According to Court records, Investigators for the Clay County Florida Sherriff’s determined that Blake died as a direct result of the gross and culpable negligence of his employer in that there was no secondary safety harness, a common practice in this occupation and could have prevented the fall, and that the fact that his employer violated Florida Child Labor law, which prohibits the employment of minors under the age of 18 in a logging occupation. Other Child Labor violations included allowing Blake to operate power-driven machinery, working on scaffolding, roofs or ladders above 6 feet tall. Blake’s normal duties included moving limbs and branches and his family had no idea that he was climbing trees.

The tree service owner later plead guilty to charges of aggravated manslaughter of a child and was sentenced on February 6 to 15 years in prison.

The Occupational Safety and Health Administration conducted a separate investigation which commence the very day of the fall and cited John Wilkes Tree Service for a general duty clause violation for failing to maintain a workplace free from recognized hazards likely to cause death or serious physical harm to employees. OSHA proposed a fine of $10,900.

Common Sense Counsel: There is a reason they are called children. The laws of every state grants them special protections from taking hazardous jobs and Alabama mandates a posting at all places of employment. In Alabama the law prohibits youths from working in occupations or places of employment, which could be harmful to their health or moral well being. Children 14 or 15 years of age may not be employed in any manufacturing or mechanical establishment, cannery, mill, woodshop, warehouse, or machine shop. Persons umder16 years of age are prohibited from 17 different occupations in Alabama including; operating any sandpaper or wood polishing machinery, washing, grinding or mixing machinery or commercial laundry, ginning type machines, machine shop, where there is unguarded gearing, upon a vessel engaged in commerce, in the manufacture of lead based paints, where there are large quantities of dust, soldering, welding or heat treating, working at heights exceeding 6 feet, junk or scarp metal yards, flagging traffic, lumberyard and selling of fireworks. See 25-8-35 Code of Alabama for detailed list.

Likewise, in Alabama there is a list of 25 prohibited occupations and places for person 18 years of age or younger can not work. See 25-8-43 Code of Alabama for detailed list.

So next time you are thinking about using cheap young southern labor, make sure you will not put their life and your liberty at risk by not knowing Alabama’s Child Labor Laws.


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 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 with links to laws and Alabama Child Labor Law Poster and follow on twitter tommyeden3