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Wednesday, September 3rd, 2008
EMPLOYMENT LAW TIP SHEET

2008 ANNUAL LABOR & EMPLOYMENT LAW UPDATE

The Labor and Employment Group is busy planning our Annual Labor & Employment Law Update. This years seminar will be held on Thursday, September 25, 2008, at Old Overton Club in Birmingham, Alabama. The seminar is free of charge and has been approved for 5.75 (General) recertification credit hours towards PHR, SPHR and GPHR recertification through the Human Resource Certification Institute (HRCI).

WORKPLACE BULLYING – THE NEW SEXUAL HARASSMENT

It’s easy to forget that the laws prohibiting sex discrimination were on the books for years before anyone ever heard the term “sexual harassment.” It took the courts at least a decade to begin to recognize, use, and define the term. Now, sexual harassment (and harassment based on other protected characteristics – race, age, national origin, etc.) is a well recognized and accepted part of discrimination law. The newest concept being used to expand employee rights is “workplace bullying.” A case from Indiana shows how plaintiff’s trial lawyers are using an old legal concept – assault – to create this new claim. Joseph Doescher was a medical technician who worked with Dr. Daniel Raess, a cardiovascular surgeon. Apparently, Dr. Raess never got high marks in kindergarten on “plays well with others.” The evidence showed that Dr. Raess routinely yelled at the technician while advancing towards him with clenched fists. But, the Doctor never physically touched Mr. Doescher – that would be “battery” whereas “assault” involves threatening words or gestures that cause a person to fear being hit.

At the trial, Mr. Doesher’s lawyers called Gary Namie as an expert witness. Mr. Namie, along with his wife Ruth (both psychology specialists), founded the Workplace Bullying Institute and has a consulting firm, Work Doctor, Inc., that advises companies on workplace bullying issues. Mr. Namie explained the concept of workplace bullying as follows: “subtle, persistent and often nondiscriminatory harassment of co-workers. It can include sarcastic comments, social exclusion, or work sabotage.”

The jury awarded Mr. Doescher $325,000, which the Indiana Supreme Court recently upheld, saying that workplace bullying is an “entirely acceptable” term. Rest assured that you will hear more about this term in the future. Should an employer be proactive in addressing and prohibiting workplace bullying? Many companies already address this issue by combining an anti-harassment policy with a workplace violence policy that prohibits threatening words or gestures. Contact your favorite MC&G lawyer if you would like to see a sample policy.

GUNS AT WORK – THE DEBATE CONTINUES

The December 2007 edition of the Tip Sheet reported on a Federal Court decision in Oklahoma striking down that state’s law saying that employees have a right to keep firearms in their personal vehicles parked in a company parking lot. Business interests challenged the Oklahoma law because most workplace murders involve employees who retrieve guns from their vehicles and return to the plant to shoot someone. The thinking is that if guns are not readily available, a disgruntled employee might “cool down” during the time it takes to go home and retrieve a gun. The Oklahoma court struck down the law on the basis that it was in conflict with an employer’s obligation under federal safety law (OSHA) to provide all employees with a safe place to work. Florida became the second state to pass a law protecting an employee’s right to bring a gun to work. The Florida Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008 exempts prisons, schools, and nuclear power plants but says that workers and customers in all other businesses have a right to keep firearms in their personal vehicles so long as they have a permit for the gun. A Federal judge in Florida recently ruled that the Florida law is valid as it applies to employees and that a company could not enforce a rule or policy banning firearms from employee parking lots even though the lots are company property. It may take a decade or so, but this issue will most likely make its way to the United States Supreme Court, which held earlier this year for the first time that the U.S. Constitution protects an individual’s right to bear arms. The case will be a face off between two competing fundamental constitutional rights – an employee’s right to keep and bear arms versus the employer’s right to control private property.

ALABAMA HELPS COMPANIES SEARCH CRIMINAL BACKGROUNDS

The State of Alabama (Alabama Criminal Justice Information System) has created a new service that allows companies to access the State’s official criminal history records. This information is available at www.background.alabama.gov. Each search costs $25, and the employer must get written permission from each person whose records are being searched. All misdemeanor and felony arrests and convictions are in the database.

INFERTILITY AND SEX DISCRIMINATION – THINK TWICE BEFORE PENALIZING FEMALE EMPLOYEES FOR EXCESSIVE ABSENCES DUE TO IVF

In vitro fertilization (IVF) and the Pregnancy Discrimination Act (PDA) –don’t seem to have much to do with one another. But, the Federal Appeals Court in Chicago recently said that the PDA protects a female employee who misses work due to in vitro fertilization procedures. The PDA says that employers must treat pregnancy the same as any other temporary illness or injury. The classic example is to compare pregnancy with open heart surgery – both conditions typically involve some period of advance notice of a surgical procedure and a six week normal recovery period. The PDA says that company policies, procedures or benefits that are applied to an employee needing heart surgery must be applied in the same way for a pregnant employee –no more and no less. A couple going through IVF experience different needs for time off, with the woman necessarily needing more time than the man. Women must spend extra time on blood tests and sonograms. Retrieval of eggs is a surgical procedure that requires recovery time, and the actual transfer of the fertilized embryo often requires a period of bed rest. The man is not faced with these required absences. Before now, most courts have said that because both men and women experience infertility, sex discrimination is not an issue with IVF so long as policies, procedures, and benefits are applied equally. This Court, acting through a three-judge panel, held that because IVF is more time consuming for a woman, a company that disciplines a woman for attendance violations due to IVF is guilty of sex discrimination under the PDA. For example, a no-fault or “points” attendance policy that docks a female employee for IVF related absences would violate the PDA. The employer involved in this case, Nalco, has asked that this decision be reviewed by all eleven judges on the Appeals Court. Stay tuned.

Directions to the Annual Labor & Employment Update

Old Overton Club 7251 Old Overton Club Drive Birmingham, AL 35242 205-972-9000

From 459 North: Exit off of 459 North at Liberty Parkway Exit (#23). Turn right onto Liberty Parkway. Go through a stop sign, a red light, and two more stop signs (approx. 2.5 miles). You will pass Liberty Park Baptist Church and then the Vestavia Fire Station on the right. Turn left at the lake just past the fire station onto Old Overton Club Drive (“OOC”). You will be facing the gated entrance. Continue onto OOC Dr through the residential community (approx. 1 mile) and you will see the driving range on your left and the Clubhouse will be across the street on your right.

From 459 South: Exit off of 459 South at the Liberty Pkwy. Exit (#23). Turn left at the stop sign and cross back over the interstate. Turn right at the red light onto Liberty Parkway. Go through a stop sign, a red light, and two more stop signs. You will pass Liberty Park Baptist Church and the Vestavia Fire Station on the right. Turn left at the lake just past the fire station onto Old Overton Club Dr.(“OOC”). You will be facing the gated entrance. Continue onto OOC Dr through the residential community (approx 1 mile) and you will see the driving range on your left and the Clubhouse will be across the street on your right.

From Airport: Take I-20 East toward Atlanta. Exit onto 459 South. Take the Liberty Parkway Exit (#23). At the stop sign, turn left and cross back over the Interstate. Turn right at the red light onto Liberty Parkway. Go through a stop sign, a red light, and two more stop signs. You will pass Liberty Park Baptist Church and the Vestavia Fire Station on the right. Turn left at the lake just past the fire station onto Old Overton Club Dr. (“OOC”). You will go through the gate and continue onto OOC Dr through the residential community (approx 1 mile) and you will see the driving range on your left and the Clubhouse will be across the street on your right.

From Hwy. 280 East/West: Turn onto Overton Road. Follow Overton Road until it dead ends at a three-way stop. Turn right onto Liberty Parkway. Proceed on Liberty Parkway and go through one red light and two stop signs. You will pass Liberty Park Baptist Church and the Vestavia Fire Station on the right. Turn left at the lake just past the fire station onto Old Overton Club Dr. (“OOC”). Go through the gate and continue onto OOC Dr through the residential community (approx 1 mile) and you will see the driving range on your left and the Clubhouse on your right.

No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.

Disclaimer regarding legal advice: The information in this newsletter should not be construed as legal advice. This information is not intended to create or constitute an attorney-client relationship. For more information or an explanation about the matters discussed in this newsletter, please contact an attorney in this practice group.

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