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By Daniel Burnick 20 Nov, 2017

As the baby boomer generation continues to mature, many of us will have parents, spouses, siblings or even ourselves in nursing homes/assisted living facilities. Although many facilities are top notch, there will always be problems. Unfortunately, residents of nursing homes/assisted living facilities are among the most vulnerable segment of our society. There can be negligent hiring, improper supervision, insufficient training and, on occasion, intentional conduct that can lead to injury or death. Last week, I posted a story and video on the Law Office of Daniel J. Burnick Facebook page from a deposition in a wrongful death lawsuit involving a nursing home in the Atlanta area. MSN reported that the family of a decorated World War II veteran placed a hidden camera in the room of a nursing home where he was a patient. After repeatedly calling for help to staff members, he lapsed into unconsciousness, gasping for air the entire time. It took staff members nearly an hour to call 911. A lawsuit was filed, and one of the nurses was deposed. She testified that they immediately and continuously performed CPR until help arrived, the hidden camera footage showed that was a lie, it took nearly an hour to call 911 and that the nursing staff laughed in front of him. One retired nursing professor was able to point out a number of violations, including failure to respond, failure to assess and failure to act. As horrendous and disgusting as the video was, thankfully it existed and it lead to the settlement of the lawsuit. After the lawsuit was settled, the nursing home fought to keep the deposition and video sealed: they lost. The video went viral, several of the nurses were fired, and the nursing home is once again being scrutinized for its operations

Throughout Alabama, including in the Birmingham area, there are numerous nursing homes and assisted living facilities. Sometimes, they are at fault when patients are injured or die. Nursing home cases are brought on a fairly regular basis in Alabama, and can be successfully pursued in court. Patients and their families need to know their rights, and if there is suspected abuse, certain steps can be taken to help correct the problems and to obtain compensation for injury or death. Sometimes, even a hidden camera is appropriate to help demonstrate what is actually happening, since the patients are often unable to communicate clearly, or, as in this instance, pass away as a result of the action or inaction of those who are supposed to be taking care of the patient.

It is important that if a family member has any concerns about the care and treatment of a loved one in a nursing home or assisted living facility, that they contact their attorney as soon as possible to help the patient receive the proper care that they are legally entitle to, or to pursue appropriate legal action in the case of injury or death.  

 


By Daniel Burnick 01 Nov, 2017
Recently, NOLA.com had an in depth report about John Besh, a famous celebrity chef from New Orleans who, over the past 12 years has employed thousands of workers.  Now, he and his company are facing numerous complaints of sexual harassment.  The biggest surprise?  There was never an HR Department/Manager until mid-October, 2017.  Brett Anderson, who wrote the story for NOLA.com, talked to 25 current and former workers during an eight month investigation.  "Taken together, they and other women described a company where several male co-workers and bosses touched female employees without consent, made suggestive comments about their appearance and - in a few cases - tried to leverage positions of authority for sex.  Several women said female colleagues, including in some cases their immediate managers, warned them to beware of 'handsy' male supervisors - at times on day one of the job.  Those who complained of sexual harassment were berated, ostracized or ignored, the women stated."  At lease two EEOC Charges have been filed, including allegations that "vulgar and offensive comments, aggressive in-welcomed touching and sexual advances were condoned and sometimes even encouraged by managers and supervisors".  For more details of the allegations, which are very disturbing, I would recommend reading the entire article .   

What, in my opinion, appears to be the biggest failure in this situation was the lack of an HR Director.  The company let managers and executive chefs at various restaurants address employee complaints in-house.  This is a recipe for disaster:  HR issues are at times complicated, and need a knowledgeable individual who can make decisions when hundreds, if not thousands, of employees are involved.  Also, the fact that there was a "General Counsel" of the restaurant group, without implementing an HR department, indicates that he was not the proper person for the position.  The new HR director, who began her job on October 11, is implementing a new orientation program, which is called "Human Resources 101", and will focus a significant portion of the program on sexual harassment concerns.  

Employers of any size should have an HR department, if viable.  If not, the employer should use outside counsel or an outside HR firm to implement policies and train the employees on a regular basis, not only on sexual harassment issues, but other harassment issues, such as race, disability, pregnancy, and other forms of harassment, as well as other policies and procedures that are applicable to that employer.  Managers/supervisors need separate, additional training, as they are the face of the employer, and their action, as well as inaction, can create legal exposure for the employer. Employees need to know who to report complaints to, and employers need to designate the appropriate person to investigate complaints of harassment, discrimination, etc.

As we end 2017, and begin 2018, now is a good time for employers to review their policies, or implement policies if none are in place.  Outdated policies need to be amended or deleted, and all employees need to be trained as to any changes.  Training, to reinforce existing polices, is always a good idea.  

Without proper policies and procedures, and effective management, including an HR Director, employers are subject to claims of harassment or other discrimination, similar to what happened in New Orleans.  The outcome for John Besh will not be good:  extremely negative publicity, employee morale, attorneys fees, and exposure to compensatory and possibly punitive damages, will have an impact for years to come. 

Now is the time for employers to get in touch with their legal counsel or HR firm to conduct a Labor Audit, make sure the proper policies and procedures are in place, and the staff is properly trained.  

Please feel free to contact me should you have any questions. 



By Daniel Burnick 26 Sep, 2017
On Tuesday, September 26, 2017, the Birmingham City Council, with two members absent, unanimously passed a new city ordinance that makes it a criminal offense to discriminate in housing, public accommodations and employment in the city limits.  Prohibited conduct includes discrimination based on race, sexual orientation, national origin, gender identity or disability. An aggrieved person starts the process with the magistrate's office by seeking a warrant.  A conviction in Municipal Court can only be obtained with proof "beyond a reasonable doubt".  Upon a first conviction, the individual or corporate defendant is subject to a fine of up to $100, a second conviction, up to $250, and a third or subsequent conviction up to $500.  If convicted after a bench trial before a city judge, there is an opportunity to appeal to the Circuit Court of Jefferson County (or Shelby County if the business is located there) and a jury trial can be requested.  

City Council President Johnathan Austin was quoted by AL.com as saying: "Birmingham has a responsibility to protect all of its citizens the best way we can...it is just one step towards making the city of Birmingham a more inclusive and open community for all citizens.  That is something we have to continue to work on. That is something we have to continue to fight for."  He further went on to say that "I anticipate that the state legislature may try to pass some legislation that says we can't do this, but we will let them deal with that."  I believe he was referring to Birmingham's minimum wage ordinance that was struck down by the state legislature last year.  The legislature is currently not in session, so any action to overturn the ordinance cannot be taken at this time.

Although this ordinance does NOT provide for civil remedies, the fact that a conviction is based on a "beyond a reasonable doubt" burden of proof, once convicted, civil liability is almost a certainty, since the burden of proof in a civil case is lesser than in a criminal case:  a "preponderance of the evidence".  As such, any individual or business charged in municipal court must take it very seriously: upon conviction, they could be subject to a civil suit for compensatory damages, punitive damages, back pay, attorney's fees, and other monetary damages. And the individual or business could be subject to adverse publicity.

Any employer, property manager/owner, hotel or other business in Birmingham should review their existing policies and procedures to make sure they are in compliance with the new ordinance, and, perhaps more importantly, train their employees as to what is prohibited by this ordinance.
 
Employers/businesses in Birmingham should consult with their attorney as soon as possible to ensure compliance with this new ordinance and begin the process of changing policies and procedures and training employees.  

For potential victims, the new ordinance expands coverage to gender identity and sexual orientation, so there appears to be protection against discrimination for the LGBTQ community, as well as those discriminated based on race, national origin and disability. Anyone who believes that they have been discriminated against should contact an attorney as soon as possible to protect their interests or go to the city of Birmingham to begin the criminal process.

By Daniel Burnick 08 Sep, 2017

In April, 2016, Stephanie Hicks obtained a $374,000 jury verdict against the city of Tuscaloosa/Tuscaloosa Police Department. As reported by AL.com  at the time of the verdict, reported that Ms. Hicks, whose husband was also an officer with TPD, began working for TPD in 2008. In 2011, she was promoted to Investigator and spent time in the narcotics division. Several months after the promotion, she learned that she was pregnant and advised her captain. Her son, Will, was born in 2012, and she returned to work from her FMLA leave 3 months later.  

When she advised her sergeant that she was going to apply for FMLA leave and take the full 12 weeks, he reluctantly signed off on the paperwork. While on leave, another agent called her and said that he heard two supervisors planning to write her up when she returned to work. The morning she returned to work, while she was still breast feeding Will, she received two written disciplinary actions, including one for failure to change the oil in her police car, which was not something she, or any other officer, was supposed to do. The second write up was because she wrote too many warrants.  

She required several breaks a day to pump breastmilk, and TPD required her to pump in the locker room, instead of a private location.  The Affordable Care Act mandates that employers provide reasonable break times for pumping breastmilk and “a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public.” Ms. Hicks said that when she complained about the forced use of the locker room, and that when she would pump breastmilk, “she'd get a call on her radio from her fellow officers, telling her to ‘wrap those boobs up' because it was time to execute a search warrant.”

Approximately a week after her return from FMLA leave, she was demoted from investigator to patrol, with a decrease in pay and the loss of a TPD vehicle, and she was forced to begin working nights and weekends instead of her prior 7 a.m. to 4 p.m. shift.  As a result of being reassigned to patrol, Hicks was required to wear a bullet-proof vest while on duty. She talked to her obstetrician, who wrote a letter to the chief that he thought that the snug vest would reduce her supply of milk and could put her at risk of mastitis, an infection of the breast tissue that is very painful. The day before she was to start her patrol assignment, she met with the chief “who said her options were to not wear the vest-which would be ‘a death wish'…or wear an oversized vest loosely, which would be unsafe. She could also quit breastfeeding. Or she could quit.”  When she questioned the chief, her supervisor and her sergeant about the reassignment, they all gave different reasons for the reassignment. Due to how she was being treated, Hicks saw her department's counselor, “who recommended she take some sick days and consider getting evaluated for post-partum depression.” All her performance evaluations prior to her maternity leave indicated she was performing at or above standards. The first evaluation post maternity leave resulted in low marks.   She requested an accommodation: to be placed at a desk job which would have made it easier to pump breastmilk. This request was denied. Two months after returning from maternity leave, she quit.  

She filed suit in November, 2013 and the case was tried in February, 2016. The jury agreed with Hicks that the hostile work environment was the cause of her constructive discharge, and that the TPD violated the Pregnancy Discrimination Act. The jury returned a verdict in the amount of $374,000. 

TPD appealed the verdict, and lost again.  Again, as reported by Anna Claire Vollers with AL.com, the 11th Circuit Court of Appeals found that  "sufficient evidence of discrimination" by the Tuscaloosa PD against Hicks.  The court also affirmed that breastfeeding is a medical condition related to pregnancy that is protected under the federal Pregnancy Discrimination Act:  " We have little trouble concluding that Congress intended the PDA to include physiological conditions post-pregnancy," the court wrote in its  decision. "The PDA would be rendered a nullity if women were protected during a pregnancy but then could be readily terminated for breastfeeding - an important pregnancy-related 'physiological process.'"

Employers need to be aware of the rights of breastfeeding women in the workplace.  If their rights are violated, it can be a very expensive mistake, both monetarily and with the bad publicity that may follow. 
By Daniel Burnick 31 Aug, 2017
Last November , I posted about a court in Texas staying the Obama administrations DOL Overtime Rule which would have raised the minimum salary threshold from $23,660 to $47,476.  Today, the Court entered an Order granting the Plaintiffs' Motion for Summary Judgment striking down the Overtime Rule.  Robin Shea reported this important development in the Employment and Labor Law Insider .  Robin's report contains a copy of the 18 page Opinion and Order.  For employers who have exempt employees in Alabama or anywhere else in the United States, whose salary is above $23, 660, this ruling is a major victory.  With the Trump administration, my prediction is that this Order may not be appealed.  Should you have any questions, as an employer or an employee, about the impact of this case, you should contact your legal counsel as soon as possible. 
By Daniel Burnick 28 Jul, 2017

Recently , I wrote about the 11th Circuit's decision on sexual orientation discrimination:  it is not a viable cause of action under Title VII.  Now, the Department of Justice, in a New York case, has filed an amicus brief arguing that Title VII does not protect workers from employment bias based on sexual orientation.  Yesterday, the ABA Journal published an article addressing the case of Donald Zarda, a skydiving instructor who filed a lawsuit against his ex-employer, Altitude Express, after a customer complained about him being gay.  The case is currently pending in the 2nd Circuit Court of Appeals.  According to the ABA story, "The Justice Department brief says the law does not define “sex,” but its common ordinary usage is that it means biologically male or female. That meaning suggests the phrase only protects people who are disfavored because of their sex, the brief argues. The brief also says Congress could include sexual orientation protections in the law if it wants to do so."  This position is contrary to the position of the Justice Department under President Obama, as well as the EEOC.

Ultimately, the question of whether sexual orientation bias/discrimination is covered under Title VII will probably be decided by the Supreme Court.  Elections have consequences, and President Trump was relatively clear on his position concerning LGBTQ issues.  This was evidenced by his tweets, the same day as the amicus brief was filed, about transgender people serving in the military.  Various courts around the country are divided on the issue of sexual orientation bias, so employers need to be aware the current status of the law where they operate.  Many employers, in Alabama and around the country, have voluntarily taken the position that members of the LGBTQ community are to be afforded rights under Title VII.  Hopefully, in the next year or two, the Supreme Court and/or Congress (if they decide to address this issue) will clarify whether Title VII applies to sexual orientation bias/discrimination. 

By Daniel Burnick 10 Jul, 2017
Four years ago today, I wrote an article for the Birmingham Business Journal addressing the Defense of Marriage Act where the Supreme Court held that it was invalid because it denied same-sex couples who are legally married the same benefits as those provided under federal law to heterosexual married couples.  Subsequent to that decision, the Court found that Same Sex Marriage is constitutionally protected.  Notwithstanding the fact that SSM is legal in all states, the 11th Circuit recently held that Title VII does not protect same sex discrimination. 

In March, 2017, in a 2-1 decision in the case of Evans v. Georgia Regional Hospital, the court found that Evans did not have a legitimate Title VII claim against the hospital for sexual orientation discrimination. For a good discussion of the case, here is a blog article by Robin Shea .   Last week, the 11th Circuit entered an order denying rehearing.  This decision is in direct conflict with the formal position of the EEOC as well as contrary to the decision rendered by the 7th Circuit Court of Appeals and the expected decision from the 2nd Circuit Court of Appeals.  As such, many legal experts believe that this issue may end up in the Supreme Court in the near future.

At least for now, in Alabama, Florida and Georgia, the states governed by the 11th Circuit, discrimination based on sexual orientation is not legally prohibited.  However, just because something is not illegal does not make it right.  Employers should not tolerate discriminatory conduct which can adversely impact the workplace, both financially and with diminished employee morale.  Each employer in Alabama needs to decide how to address sexual orientation discrimination:  in my opinion, it should be prohibited. 



By Daniel Burnick 03 Jul, 2017

Ten days ago, I talked about two cases in Alabama involving employee theft/embezzlement:  a prominent CFO who embezzled more than $11 million from his business, and a school bookkeeper who stole over $100,000 from her school.  Since I posted this article, there have been two more instances of employee embezzlement/theft that caught my eye.  First, Randall Sho Woods, an accountant  who used to work for State Traditions and for Ingram's Account and Financial Management Inc. pled guilty to two counts of wire fraud and one count of bank fraud.  According to Al.com , Woods used a corporate credit card to spend over $30,000 for personal expenses, stealing from a Pay-Pal account and forging checks.  Also, while he served as treasurer for UA's Million Dollar Band Association, he wrote more than $28,000 of checks payable to himself.  The total amount of funds he stole exceeded $200,000.

In Wilton, Alabama , a small town in Shelby County, Alabama,  April Price Romero was employed as the town clerk.  Between January and May, 2016, she stole over $8,000 from Wilton by making unauthorized disbursements from the town's bank accounts and using the money for her own personal use.  She pled guilty in federal court and agreed to pay over $17,000 in restitution to the city and forfeit the money that she stole.  Although $8,000 may not sound like a lot of money, for a small town or a small business, it is a significant amount. 

Once again, it is important that every employer in Birmingham, in Shelby County, in Alabama, and around the country have safeguards in place to help prevent employee theft and/or embezzlement of company funds.  There are many simple and effective measures that can be implemented to minimize the risk, and employers should contact their legal counsel or accountant to evaluate their current systems and make necessary changes.  It can mean the difference between being a successful business and a bankrupt business.


By Daniel Burnick 22 Jun, 2017

Ever since I began practicing law in 1983, I have been involved in representing clients in cases involving employee theft and embezzlement. I have represented a number of individuals accused of committing the crime as well as the employers who were the victims of the criminal conduct. The nature of the businesses involved is varied as are the ages and backgrounds of those engaging in the illegal conduct. Two recent cases have come to light, one involving a former CFO of a company, and one involving a school bookkeeper.

Thomas Hinson, 70, a former University of Alabama football player who played for Bear Bryant, was the former Chief Financial Officer at Strickland Trading Inc., a Shelby County Scrap Metal brokerage company.  On June 15, 2017, he was sentenced to 97 months, just over 8 years, in federal prison for embezzling $11.3 million from Strickland Trading Inc.  Al.com reported that Hinson "took 225 checks from Strickland Trading Inc. and deposited them into an account he set up with nearly the same name, Strickland Trading Company, LLC.  This scheme spanned nine years, from 2007 through 2016.  He used the money for personal expenses, and bought real estate, cars and other items for himself, family and friends.  According to one of the partners at Strickland, the monthly average of the embezzlement was $134,334.  According to another partner at Strickland, Hinson "used an 'archaic software system' to conceal his fraud, so annual auditors did not catch the missing money."

Earlier in June, Tyee Eason, 46, a bookkeeper for Helena Middle School, also in Shelby County, was arrested after being accused of stealing more than $100,000 from the school. She was employed with the school system for 11 years, and worked as the bookkeeper at Helena Middle School since it opened in 2008. The funds were found missing after a routine audit. The investigation is still ongoing, and her first court date is set in July. 

A quick google search reveals hundreds of cases, in Birmingham, in Alabama and around the country involving theft or embezzlement by employees from their employers.  Oftentimes, the embezzlement/theft is not caught due to lax oversight, non-enforcement of accounting rules, and antiquated or inadequate software.  There are many steps that can be taken to prevent theft/embezzlement by employees, including, but not limited to, more frequent audits, increased random reviews of the work performed by bookkeepers/CFO's, mandatory change of job responsibilities on a regular basis (have bookkeepers change the accounts they are working on for a month or so to detect any discrepancies on the accounts they have been assigned to), a regular review of the computerized records to determine if the system has been manipulated, and upgrading accounting software as needed.  

Employers would be wise to consult with their attorney or CPA on a regular basis to discuss how to avoid or limit the opportunities for employees to embezzle/steal money from the business or customers. 

By Daniel Burnick 24 May, 2017

Today, I was at lunch with a friend when the topic of Social Media came up.  I said that I had recently presented at the Birmingham SHRM Conference addressing various issues involving the use of Social Media in the workplace.  A woman at the next table chimed in, saying she didn't mean to intrude on our conversation, but she had some questions about what can and should be posted on Social Media, specifically about pictures of alcohol.  I told her that I touched on that very subject in my recent speech, discussing a former University of Alabama and professional football player who was fired from his job at a Christian School in Georgia when a parent found a picture of him and his wife, who is an actress, at a PR event where he was holding a bottle of alcohol. 

When I returned to my office, I saw an article in Al.com that discussed the plight of several white Gardendale High School students who allegedly posed pictures of themselves in blackface.  This caught my attention for a number of reasons:  first, Gardendale is currently in the process of forming it's own school system, breaking away from Jefferson County, and is involved in litigation in federal court, with one of the issues involving a long standing (52 year old) desegregation lawsuit that involves the county school system. 

Perhaps more concerning for anyone who uses Social Media, a number of white female students posted photographs of themselves approximately six months ago while using a charcoal beauty treatment on their faces.  The treatment was applied as a face mask, and, being charcoal, was black.  It appears as if someone hijacked these pictures, and reposted them on Facebook and Snapchat with derogatory and racist comments, including the "N" word.  One of the girls has received death threats and was removed from the Gardendale High School dance team.  One local activist group has called for an investigation into this situation, including an allegation that a "hate crime" may have been committed.

This is the initial story that has been reported on the local news website.  If the photographs were indeed hijacked and re-purposed by an individual with an intent to do harm, these young girls have suffered and will suffer the consequences for quite some time.  Being removed from the dance team, death treats, being labeled as a racist, and having colleges and/or potential employers find this information as the result of a Social Media search could result in not getting into college or not getting hired.

The moral of the story is that even innocent and innocuous photographs that are posted on Social Media can be hijacked and misappropriated for improper and even illegal reasons.  I know a number of friends who have used this same charcoal facial treatment, and posted similar pictures on their Social Media accounts.  They would face severe consequences if something like this happened to them.  Be careful what you post on Social Media:  as I have repeated numerous times in speeches and presentations, anything you post on Social Media can and will be used against you.  Also, there is no expectation of privacy on Social Media sites, even if you are privacy protected.  Should a situation like this occur to you, do not hesitate to take the appropriate action to remedy the situation as soon as possible, including seeking legal counsel to learn what rights you may have. 

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