Is it Really Illegal to Join a Union in Alabama?

Alabama is considered a Right to Work state. There is a lot of misinformation and confusion surrounding what this actually means. Some people tend to think that if you live in a “right-to-work” state like Alabama, this means you cannot be part of a union. Likewise, some believe that they will be arrested if they join a union. Fortunately, this is not really the case. To explain a bit, consider how unions work and how Alabama law treats them.

What is a Union?

A union is nothing more than a collection of employees who gather and create a master contract among and between themselves, which allows them to bargain together as a group for better wages, treatment, benefits, and other worker rights. This is what we know as “collective bargaining.” The theory is that workers alone have very little power to negotiate with their employers, who are generally large multi-million-dollar organizations. Together, workers have real power.

What is “Right-to-Work?”

This is a political term, not a legal one. In so-called “right-to-work” states, workers cannot be forced to join a union as a precondition of employment or to keep their jobs. This has long been the law of the land in Alabama. However, it does not in any way prevent a person from voluntarily joining a union. In fact, about 11% of the state’s workforce are in unions, according to the Alabama Department of Labor.

States that do not have “right-to-work” laws allow certain types of trades and professions to have union shops, meaning those employers can make union membership a condition of employment. If you want to work for a union pipefitter operation in a union state, then you will have to agree to pay union dues. There are pros and cons to this arrangement, but in general, unions with mandatory membership are much stronger, as everyone contributes, and everyone is protected. In states like Alabama, unions are much weaker in terms of bargaining power and funding.

Alabama’s Constitutional Amendment on Unions

It was not enough for Alabama lawmakers to already have laws on the books that bar mandatory membership in unions. In 2016, Amendment 8 passed by an almost 70% vote, thus amending the state’s constitution to include a specific provision called “Right-to-Work.” You can read the whole Constitutional Amendment 913 and see how it prevents unions from requiring membership. However, nothing in this amendment says a person is committing a crime by choosing to join a union and such a provision would be unconstitutional under the United States Constitution.

Federal Worker Protections Preempt State Law

Thankfully, although Alabama laws are not worker-friendly, federal laws preempt or supersede state laws in many ways. The National Labor Relations Board (NLRB) protects the rights of workers to organize; however, this is not a universal principle. Some jobs and industries may be exempt from federal preemption, such as state workers.

Workplace Discrimination and Labor Disputes

If you are facing a dispute with your employer, you need an attorney who understands both state and federal laws that protect workers in Alabama. Call the dedicated employment lawyers of Fonteneau & Arnold, LLC today to get real answers to your toughest labor law questions.

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The Ugly Truth About Workplace Discrimination Against Veterans

It may seem unthinkable that an employer would single out a veteran or service member for discrimination at work, but it happens quite a lot. Whether it is a general misunderstanding about the military, an outright negativity toward those who serve, or more subtle discrimination, such as a desire to avoid prolonged absences for deployments or other obligations, there are employers who actually try to avoid hiring veterans and service members. For some, it is an irrational fear that veterans will not be stable mentally or successful in terms of career productivity.

The ugly truth about veteran discrimination is that it can be easy to spot, yet hard to prove. Fortunately, employment discrimination lawyers may be able to help in some situations.

Common Reasons for Employers Discriminating Against Veterans

 

While there are sadly those who may just have a pure disdain for the military, the vast majority of veteran discrimination cases are not so obvious. Here are some of the most common types of unlawful discrimination against veterans and military service members:

Ignoring Veterans’ Preference Laws

 

Under Alabama law, all private employers are “authorized” to create and follow a veterans’ preference hiring policy. This means that private employers are allowed to apply a preference in favor of veterans, but they are not required to do so. Public employers, however, are required to give veterans extra points in the hiring process. Section 36-26-15(b) of the Alabama Code even extends these rights to wives of some severely disabled or deceased veterans. Federal law also requires special hiring authorities for some veterans.

 

Refusing to Hire or Retain Reservists and Guard Members

Those currently serving in the Reserves or Guard have additional protections under both Alabama law and federal law. You are entitled to a leave of absence, but there are several key rules that apply to also protect employers in the event of an extended long-term deployment. Some employers choose to unlawfully discriminate in hiring to “avoid the trouble.” Some employers will also try to convince reservists to quit when they are activated, sometimes finding creative ways to force the employee to leave employment, rather than keeping the job open.

 

Presumption of PTSD or Mental Health Problems

USA Today reports that many employers have unfair, biased views of veterans, assuming that they all suffer from mental health issues or that post-traumatic stress disorder (PTSD) will cause them to be a liability in the workforce. While this stereotyping may be completely offensive, it does happen. Veterans should be mindful of warning signs of discrimination in the workplace.

 

Presumption of Physical Disability

Since many veterans returning from combat service may have suffered physical injuries during their service, some employers may come to the generalized conclusion that “most” or “all” veterans are broken (mentally or physically). Rather than seeing veterans as resilient, highly-skilled, and dedicated employees who add value, these employers may see veterans as a liability risk or more likely to file a claim for injuries. All are unsupported by evidence. Of course, that’s the nature of discrimination – it is an employment practice that focuses on factors that have nothing to do with ability or skill.

Veteran Discrimination in Your Workplace?

 

If you are a veteran who is suffering discrimination because of your status as a veteran, you may have options. Do not let someone trample on your rights. You have worked hard to build your career, and you deserve to continue building on your hard work. Contact the attorneys of Fonteneau & Arnold, LLC. With over 20 years of combined experience representing employees in labor and discrimination disputes, we understand what it takes to fight discrimination. Do not just worry about your situation; call us to get real advice today.

Am I Exempt From Time and a Half?

There are a lot of different ways that an employer can pay an employee. Some workers receive a weekly paycheck, some are paid by the hour, and others have a set annual salary, which is broken into bi-weekly payments. The variations are pretty much unlimited. However, federal law still requires that workers be properly compensated for the time they work, regardless of how they are paid. Under the Fair Labor Standards Act (FLSA), employers are required to pay minimum wage and overtime pay for their employees. Not all employers or employees are eligible for these protections.

What is Time and a Half?

 

Time and a half is often misunderstood, but it is pretty simple. Your employer is supposed to pay overtime for any hours worked in excess of 40 hours within any seven-day period. It does not matter if work is at night, on the weekend, or you work a holiday. Just count any seven-day period, and if your hours exceeded 40, there should be overtime pay for the excess hours. Obviously, there are plenty of exceptions and nuances to this, but that is the general rule. Overtime should be paid at 1.5 times your regular wage.

 

Is My Employer Exempt?

 

As a federal law, FLSA applies to employers who engage in interstate commerce with at least $500,000 in annual business. Interstate commerce is a tricky concept. In general, interstate commerce means making things that will ultimately be sold across state lines, performing services across state lines, buying or selling things in different states, handling or transporting things across state lines, working on things in other states, or any other kind of work that implicates more than one state.

Big corporations are usually obvious examples, but even a small employer who sells items online could be covered by the law, provided the $500,000 limit is met.

My Employer Does Not Meet the $500,000 Limit or do Anything Out of State

 

Even if your employer does not meet the monetary threshold or obviously participate in interstate commerce, FLSA specifically covers the following:

• Hospitals (private or public)
• Nursing Homes (or any type of facility that serves the aged, sick, or disabled)
• PK-12 Schools
• Colleges and Universities
• Federal/State/Local Government

The following household employees might be covered if they work at least eight hours per week and earn more than a predetermined annual threshold of income from a single employer:

• Housekeepers
• Cooks
• Gardeners
• Home Health Aides
• Nurses

An individual employee who works in interstate commerce for a designated period of time may still be covered, even if the employer generally does not.

Is My Profession or Job Title Exempt?

 

This is one of the more common ways employers try to avoid paying overtime – they ‘classify’ workers as being one of the following job types. These are all exempt from the overtime protections of FLSA Overtime Protection, just to mention a few:

• Executives
• Administrative
• Professionals
• Teachers
• Lawyers
• Most Sales Employees
• IT / Skilled Computer Tech Jobs
• Fishermen
• Most Small Farm Workers (less than 500 workers)
• Casual Babysitters
• Most Commissioned Retail Workers
• Many More

My Employer Says I am Exempt, but I Disagree

 

Many employers will give a blue collar worker an ‘administrative’ title like Operations Manager or Office Manager, even though the person’s primary job duties are heavy labor or non-exempt types of work. This is done so the employer can classify the worker as a professional or administrative exemption in order to avoid paying overtime. Other employers might say that because they pay a salary, rather than hourly wage, this exempts the employee. This is untrue. The Department of Labor provides great resources for you to review.

If you believe your wage rights are being violated, call the attorneys of Fonteneau & Arnold, LLC. One call could save you thousands in lost wages, so do not keep wondering. Talk to an attorney who can help you understand and fight for your rights today.

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Types of Discrimination Explained

When a worker is terminated, demoted, or denied a promotion, it is often frustrating and can be quite unexpected. In other situations, there may be obvious and inappropriate reasons for the negative employment action. In Alabama, employment is considered at-will, meaning an employer can take adverse employment actions for just about any reason, so long as the reason does not violate federal law.

If your employer has an unlawful reason for taking actions against you, then you need to call an Alabama employment discrimination lawyer today to protect your rights.

Types of Discrimination

 

The Equal Employment Opportunity Commission (EEOC) hears disputes involving various types of discrimination. If you believe that your employer took a negative action against you due to any of the following reasons, you may have a potential discrimination case against the employer.

• Age: It is unlawful to discriminate based on age in most circumstances.  The Age Discrimination Act protects workers over 40 years of age.  Of course, there are exceptions, such as law enforcement, public safety, and military positions that may have upper age limits. If in doubt, speak to a lawyer right away.
• Gender: It is illegal to make employment decisions based on gender or gender identity. All workers have a right to be judged on the character and quality of their work and abilities, not their gender.
• Ethnicity/Race/Color/Nation of Origin: Ethnicity, race, color, and national origin are all different but often overlapping social dynamics. Ethnicity is, to put it simply, a shared social background that often includes a similar language, religion, or ancestry. Ethnicity may not always be obvious on the surface. Race is a social characteristic that is identifiable among a particular group, most notably due to physical features and characteristics. Color is simply skin color. Nation of origin is simply the country from which someone originates. These are often subtle but key distinctions. Nevertheless, all are improper reasons for making hiring, firing, or promotion decisions in the workplace.
• Genetic information: Genetic discrimination occurs when an employer or even a health insurance company attempts to discriminate based on unique genetic information. This was made unlawful by the Genetic Information Nondiscrimination Act of 2008 (or GINA).
• Disabilities (mental or physical): Some disabilities are obvious, like amputations, while others are invisible, like depression, ADHD, or post-traumatic stress disorder (PTSD). Regardless of the disability, this should not be a ground for discrimination in the workplace.
• Veteran status: There are some who actually view military service negatively or who fear that veterans are somehow less able to perform jobs. This is also unlawful discrimination.
• Members of the Armed Forces Reserve: Reserve members cannot be treated in a discriminatory manner for attending scheduled drill or otherwise having to miss work to perform military service, including training or deployment.
• Pregnancy / Parenthood: Being a parent, having a child, and adopting are personal decisions that should not be considered in an employment context.
• Relationship to a person who has been the victim of discrimination: Employers should not make employment decisions based on the fact that a person’s relative is involved in a claim of discrimination.
• Reporting or acting as a witness in a discrimination case: Your employer should not discriminate or take adverse actions against you for speaking up and reporting discrimination or acting as a witness in a claim of discrimination against the employer.

Get Help With Your Discrimination Case

 

If you suspect that you have been the victim of discrimination, or you know someone who has, it is important to contact a lawyer right away. Time is limited to take actions to protect your rights. At Fonteneau & Arnold, LLC, we pride ourselves in aggressively fighting for our clients and counseling them through challenging and complex situations involving wage disputes, sexual harassment, discrimination, and other labor disputes with employers. Contact us today to schedule a consultation and get answers.

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What to Expect When You File a Discrimination Case

When you have been the subject of employment discrimination, it can be difficult to know where to turn. Complex federal and state laws often create hurdles and obstacles. Employers certainly do not make it easy. Family and friends may be full of seemingly good advice, but when it comes right down to pursuing justice, victims often find themselves all alone. Fonteneau & Arnold, LLC wants you to know exactly what to expect when you file a discrimination case against an employer.

Step 1: First Try Complaining to Management

 

It is hard to say your company was in the wrong if you never gave them a chance to do right. So, notify your superior or human resources department right away. It is best to put something in writing. Keep a log book or journal, and write down the name and title of the person you informed about your discrimination. Creating a paper trail is crucial. If your complaints go unanswered and the problem continues (or gets worse), proceed to step 2.

 

Step 2: The Equal Employment Opportunity Commission (EEOC)

 

Before you can just go to court and file a lawsuit, there are some administrative steps you must take.  This involves filing a complaint with the EEOC. Each area has its own local agency that is tasked with handling the complaint process. The EEOC is strict about how long you have to file, however. In many states, there are extended deadlines for filing. Not so in Alabama. As the EEOC makes very clear, you have just 180 days to file your complaint.

Unless you are close to the deadline to file, you should call Fonteneau & Arnold, LLC to see if the firm can assist you with filing a Charge of Discrimination.

Step 3: EEOC Investigation and Determination

 

EEOC, while a fine government entity, is still the government. There are inefficiencies and bureaucratic issues that can delay progress. The EEOC will investigate your complaint, talk to witnesses, and attempt to resolve the matter without court intervention. During this process, here are some tips for you to keep in mind:

• Document everything
• Stay focused
• Do not be afraid to check in and stay on top of the case
• Continue looking for creative solutions
• Speak to your private attorney

Step 4: Right-to-Sue Letter

 

Chances are pretty good that your case will get denied. This does not mean it lacks merit; it just means the EEOC gets a lot of cases and tends to deny many of them. If the EEOC cannot resolve the claim, it will send you a letter advising that you now have the right to file a lawsuit under Title VII. You will only have 90 days, though. This is a very short amount of time to prepare and file a lawsuit, even for highly skilled attorneys. Hence, it is usually a good idea to speak with an experienced discrimination lawyer well in advance of this point.

Keep in mind that the EEOC can actually represent you and file a lawsuit on your behalf.  However, it is very expensive, and the government is limited in how many cases it can pursue. It generally focuses on more serious, politically charged, or highly publicized cases that may have precedential effect. In other words, the EEOC prefers to take cases that could lead to sweeping changes.

Right to Hire Your Own Attorney

 

If you have a potential discrimination case against your employer, you have a right to hire your own attorney to work with you to navigate the system and move your case forward, whether through an EEOC resolution or through a federal action in court. At Fonteneau & Arnold, LLC we focus our efforts on representing workers who have faced discrimination, harassment, wage violations, or who are facing complex labor disputes with their employers. If you need help, call us as soon as possible so we can begin helping you build your case today.

Case Involving Alabama Arby’s Franchise

Highlights How Teens are Impacted by Sexual Harassment

 

When most people think about discrimination and sexual harassment, they tend to think of adult professionals who are passed over for promotions or subjected to sexual advances by high-powered executives. However, a current case pending before the Equal Employment Opportunity Commission (EEOC) highlights the realities of sexual harassment and how even younger workers can be impacted.

The attorneys of Fonteneau & Arnold, LLC represent clients throughout Alabama who face discrimination, harassment, and labor rights violations. Call today if your rights are being violated.

March 30, 2018 Lawsuit

 

A little over a month ago, the EEOC filed suit against an Alabama Arby’s franchise owner, Beavers’, Inc., alleging among other things that the franchise (and Arby’s) had ignored repeated complaints of sexual harassment against female employees. According to the complaint, the franchise company knowingly hired a male employee who had a history of sexual harassment. Allegations go on to explain that this male employee was hired as a “team leader trainee,” who began pressuring female employees to engage in sexual relations with him. The graphic and detailed allegations even claim that he “attempted to follow employees home.”

Teenagers Among the Victims

 

What makes this story even more troubling is that among the victims are a number of young workers, some of whom were just teenagers at the time. These teens allegedly reported the harassment to superiors but received no support or action. Ultimately, it is claimed that one of the victims was actually physically injured by the accused harasser.

The case, EEOC v. Beavers’ Inc., d/b/a Arby’s, Case No. 1:18-cv-00150, is pending before the U.S. District Court for the Southern District of Alabama. As a press release from the EEOC reports, Beavers’, Inc. is a Florida company that operates 51 franchises throughout the southeastern U.S.

Sexual Harassment Affects Everyone

 

Some people think of sexual harassment as harmless fun of “just joking,” but the key distinction to remember is that it becomes sexual harassment when there are unwelcome sexual advances or the environment becomes hostile and it affects your ability to work and carry on your daily tasks.

The American Association of University Women (AAUW) released a comprehensive report in 2011, which chronicled the results of a survey of almost 2,000 individuals nationwide. The results were astonishing. Nearly half of all women surveyed reported being sexually harassed as a teenager, whether in school or at their jobs, many of which were part time or low-paying jobs frequently held by high school students. The survey results also illustrated the harm one by these events, as 87% of those who reported harassment felt that it had a negative impact on their lives.

Simply put, no one should be forced to tolerate this type of behavior, especially not children and young teenage adults. Such behavior teaches an early and damaging lesson that is hard to unlearn.

Fighting for Your Rights

 

If you have been the victim of workplace harassment, discrimination, or unwelcome sexual advances, contact an experienced team of Alabama employment discrimination lawyers who can answer your questions and guide you through the challenging maze of laws that apply to harassment claims. Our team at Fonteneau & Arnold, LLC have over 20 years of collective legal experience that they can put to work for you. Call today to schedule a completely free and private case consultation. There is no charge for meeting to discuss your case, so put your mind at ease and find out your options today.

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