Law Blog

Posts

Guard Misconduct in Alabama Prisons

/0 Comments/in /by

Prison can be a very frightening place. Most prisons are overcrowded, and there is often rampant violence among inmates, which can cause those inside sink into utter despair. In this type of environment, it is very easy for those in authority to become corruptive and engage in abusive behaviors toward inmates.

Alabama has certainly seen its share of corruption and abuse in state prisons over the years. In 2017, five prison guards were arrested by the Alabama Department of Corrections on charges that they were using their positions of power for personal gain. The five men were involved in a bribery scheme in which they smuggled in drugs and cell phones to inmates in exchange for inmates creating online accounts to illegally purchase items for the officers. This is just one of numerous corruption scandals that has plagued the state prison system.

As bad as these bribery and corruption scandals are, they pale in comparison to the widespread guard misconduct and abuse that happens in Alabama prisons. Last year, a former north Alabama jail guard was charged with criminal misconduct after allegedly being sexually involved with one of the inmates. But this is just the tip of the iceberg. Countless Alabama prison inmates are physically and sexually assaulted by guards each year, prompting a statewide investigation by the US Justice Department into unconstitutional conditions and practices in state prisons several years ago.

Two facilities that have been under intense scrutiny for notorious misconduct and abuse in recent years are St. Clair Correctional Facility in Springville and Julia Tutwiler Prison for Women in Wetumpka. Saint Clair Correctional Facility has had a long history of dangerous conditions and high rates of violence. In 2014, the Equal Justice Initiative (EJI) filed a class action lawsuit against the facility over their failure to address these conditions even after six homicides occurred in the preceding 36 months.

The EJI’s investigation revealed mismanagement, unprofessional conduct, and frequent verbal and physical abuse on the part of some prison officers, including a number of high-ranking supervisors. In 2017, the Alabama Department of Corrections reached a settlement with the EJI in which it agreed to implement various reforms in an effort to more effectively manage the prison and reduce or eliminate the incidents of violence.

Unfortunately, within a year after the settlement, it was reported that violent incidents still occur all too frequently in the facility. In fact, as of December 2018, three prisoners had been killed and one guard assaulted since the settlement was reached.

The Julia Tutwiler Prison for Women became the subject of a formal inquiry by the Civil Rights Division of the Department of Justice in 2013 following a complaint filed by the EJI. The EJI found that there was widespread sexual abuse occurring at Tutwiler, a facility in which there is continual interaction between male staff and incarcerated females. Countless women who have been through Tutwiler have told stories about the constant fear they live under, and how they are regarded with suspicion and routinely punished and humiliated in numerous ways when they report abuse.

In 2014, the Justice Department released its report of findings following the investigation into Tutwiler. In its report, the DOJ said, among other things:

We find that the State of Alabama violates the Eighth Amendment of the United States Constitution by failing to protect women prisoners at Tutwiler from harm due to sexual abuse and harassment from correctional staff…Tutwiler has a history of unabated staff-on-prisoner sexual abuse and harassment. The women at Tutwiler universally fear for their safety. They live in a sexualized environment with repeated and open sexual behavior, including: abusive sexual contact between staff and prisoners; sexualized activity, including a strip show condoned by staff; profane and unprofessional sexualized language and harassment; and deliberate cross-gender viewing of prisoners showering, urinating and defecating.

Since the report was released, the most significant change at Tutwiler has been the replacement of the warden. However, the previous warden was never held accountable and was allowed to retire with full benefits. In addition, the new warden was previously the deputy warden who oversaw a large part of the security during the time these abuses were taking place. Until more fundamental reforms are implemented, there is unlikely to be any meaningful relief for the inmates at Tutwiler.

Contact Alabama Civil Rights Attorney Kira Fonteneau

Physical abuse, sexual abuse, and other forms of guard misconduct are rampant in Alabama prisons, and it is believed that as many as 10% of all state prisoners have been sexually abused during their confinement. If you or someone close to you has been subjected to these conditions, contact Attorney Kira Fonteneau for a free and confidential consultation. Kira has over 13 years of experience standing up for those who have had their civil rights violated, and she was recently named president of the Alabama ACLU. Call our office today at 205-564-9005 or send us a message through our online contact form.

Forced Arbitration in Law Firms

/0 Comments/in /by

For decades, most big law firms have required new attorneys and other employees who become part of the firm to sign a mandatory arbitration agreement as a condition of employment. By signing a mandatory arbitration clause when someone is hired, the employee forfeits their right to settle any disputes with their employer in court. Instead, the dispute is handled through binding arbitration, overseen by a (supposedly) neutral, third-party arbitrator.

Last summer, this all started to change because of one tweet. It began when parts of a mandatory arbitration agreement from BigLaw firm Munger, Tolles & Olson, LLP were leaked. The leaked portions of the agreement were tweeted by a Harvard Law lecturer, and they were subsequently retweeted hundreds of times. Several media outlets also picked up and reported on the leaked documents.

The documents showed how the firm’s forced arbitration clause protected them from lawsuits over issues such as sexual harassment and racial discrimination. This created an immediate and overwhelming backlash against the firm and their mandatory arbitration policy. Within a day, Munger caved and announced that they would end the policy. Soon after, the cause was picked up by the Pipeline Parody Project, a group of Harvard students whose mission is to put an end to harassment and discrimination in the legal field. Since the PPP got involved, several other BigLaw firms have announced that they will end forced arbitration policies.

Forced Arbitration vs. Litigation in Employment Contracts

Law firms are not alone in their widespread use of mandatory arbitration clauses in their employment contracts. It is estimated that more than 60 million American workers across a wide range of industries work under a similar type of agreement, and many do not even realize it. These clauses are seen as advantageous for employers for a number of reasons:

  • No Right to a Jury: The Civil Rights Act of 1991 gives employees the right to have discrimination claims heard by a jury of their peers. Arbitration does not provide employees with this opportunity. With arbitration, the dispute is heard by an arbitrator who is supposed to be neutral. Unfortunately, this is not always the case. For example, some arbitrators regularly handle employment disputes for the same organizations. When this is the case, it is very reasonable to question exactly how neutral they really are.
  • Discovery is Limited: During a court trial, both sides exchange information, evidence, and lists of witnesses in what is known as the “discovery” phase. Parties who are going through arbitration are generally limited in their ability to request information from the other side. This makes it more difficult for an employee who has been harassed or discriminated against to prove their case.
  • No Right to an Appeal: With arbitration, the arbitrator acts as the judge and jury. In general, their decisions are final and cannot be appealed. So, if you are unhappy with the decision of an arbitrator, there is no available legal mechanism to have your case reviewed by a higher authority.
  • Recoverable Damages are Limited: Even if an employee does win their arbitration proceeding, the forced arbitration contract they signed often limits the damages that they are able to recover.

Arbitration can be a viable form of alternative dispute resolution (ADR), and it certainly has its place. For example, parties to a dispute may voluntarily choose to try to resolve their dispute through arbitration. This allows them to settle their dispute in a less formal setting and save time and money vs. taking the dispute to court. But when an employee is forced to agree to mandatory arbitration to settle a dispute as a condition of employment, they have very little choice except to sign the agreement if they want the job.

In the wake of the #MeToo movement, law students across the country are starting to realize how unfair forced arbitration clauses are. And the backlash against BigLaw is likely only the beginning. Sooner or later, the rest of corporate America is going to have to confront this issue and make appropriate changes that protect their employees and ensure their right to a safe work environment.

Harassed or Discriminated against in the Workplace? Call Our Skilled Alabama Employment Law Attorney

If you have been subjected to harassment or discrimination at your place of employment, you have legal rights, even if you signed a forced arbitration agreement. Attorney Kira Fonteneau understands the frustration employees feel when their civil rights have been violated, and she has been an aggressive advocate for the working people of Alabama for the past 13 years. Kira can take a look at your case and advise you of your legal options, so you can make the most informed decision on how you wish to proceed. For a consultation with attorney Fonteneau, call our office today at 205-564-9000, or send us a message through our online contact form.

What are the Most Common Violations against Tip Earning Employees?

/0 Comments/in , /by

Waiters, waitresses, bartenders, delivery drivers, and many others in the hospitality industry depend on tips for their living. In fact, many tipped employees earn more in tips than they do with their hourly wage. These workers are typically paid no more than minimum wage, and in many cases, establishments pay them below minimum wage.

Federal law and the laws of most states (including Alabama) allow employers to pay tip-earning employees less than the minimum wage, as long as these employees earn enough in tips to at least make up the difference, and as long as the employer is in compliance with the Federal Labor Standards Act (FLSA). When an employer counts an employee’s tips toward its obligation to pay minimum wage, this is known as a “tip credit.” In order to take a tip credit, an employee must earn at least $30 per month in tips.

Although employers are required to be in compliance with federal wage and hour laws, many of them engage in routine violations. According to a study by the Economic Policy Institute of the 10 most populous states, wage theft by employers is rampant, and it costs employees billions of dollars each year. Wage theft can come in many forms; such as overtime violations, forcing employees to work off the clock, denying workers meal breaks, taking illegal deductions from wages, misclassifying employees as independent contractors, and many others.

Among tipped employees, there are several ways employers frequently violate the law. Here are some of the most common legal violations against tip earning employees:

Illegal Tip Pooling

Tip pools are common in many establishments. This is when an employee contributes all or part of their tips to a pool that is then divided among a certain group of employees. Federal law allows employers to implement tip pooling whether they pay their employees a full minimum wage or not. However, there are some strict guidelines about who is allowed to participate in the pool. Employers, supervisors, and managers are not allowed to be part of a tip pool under any circumstances.

There is another important distinction between employees who have direct interaction with the customers, and those who work behind the scenes, such as bus boys, dishwashers, and cleaning staff. The FLSA was clarified in 2018 to say that only employers who pay full minimum wage and do not take a tip credit are allowed to establish a tip pool that includes “back house” staff. If you work for an establishment that does not pay a full minimum wage (in lieu of your tips), and they have a tip pool with employees that do not interact with the customers, your employer may be in violation of the FLSA.

Forced Payment for Uniforms

Another area in which employers sometimes engage in violations against tip-earning employees is with their uniform. An employer is not allowed to force an employee to pay for a mandatory uniform. In many establishments, this is pretty straightforward. If you are required to wear a specific uniform that displays the company’s logo, colors, etc., you should not be forced to pay for it. There are some gray areas, however, when it comes to requirements of certain styles of dress that may be required. For example, if the entire wait staff is required to wear a tuxedo with bow ties, and the shirt and ties must be a certain color, this could be considered a uniform.

Over-Deducting for Credit Card Processing Fees

Many employers deduct a percentage of tips an employee receives by credit card to cover the cost of the credit card processing fee. Generally, employers are allowed to do this in most states as long as the amount deducted does not put the employee below the minimum wage, and as long as the employer does not profit from this deduction. Employers who engage in this practice are on very dangerous legal ground, however. This is because of the complexity of credit card processing fees.

With many merchant processing services, an establishment pays the interchange fees for a credit card transaction. These fees may vary from as low as under 1% on most debit cards to as high as 4% for credit cards with rewards programs (such as cash back and airline miles). If, for example, an employer automatically deducted 4% of the tips an employee received through electronic (credit and debit card) transactions, they may very well be illegally profiting from the deduction.

Excessive Non-Tipped Work

Tip-earning employees frequently engage in work that does not earn them tips; such as cleaning tables, sweeping the floor, washing dishes, and many others. If an employee spends more than 20% of their work day performing non-tipped activity, an employer may not take a tip credit for that employee. In addition, employers must pay at least the minimum wage for any non-tip work a tip-earning employee performs.

Contact Alabama Employment Law Attorney Kira Fonteneau

If you are a tipped employee in Alabama and you believe your employer has engaged in wage theft against you, it is important for you to speak with an employment law, so you fully understand your legal rights and options. Attorney Kira Fonteneau has aggressively advocated for working people in Alabama for the past 13 years. Kira was recently named president of the Alabama ACLU, and she has helped numerous workers obtain justice during an employment dispute. For a consultation with attorney Fonteneau, call our office today at 205-564-9005. You may also send us a message through our web contact form.

Sexual Harassment Part 2: Sexual Harassment in the Hospitality Industry

/0 Comments/in , /by

Last time, we talked about sexual harassment in the medical field and the dire need for reforms to give female health professionals a safer work environment. This time, we turn our attention to another industry that is in badly need of reform; the food and beverage/hospitality industry. For as long as there have been bars, restaurants, hotels, and resorts, owners of many of these businesses have used a sexual undertone to attract customers.

Discriminatory hiring practices are rampant in this industry. For example, how many male waiters or female waitresses over the age of 40 does Hooters hire? Hooters is not alone, however. These same preferences are used openly by casinos in Nevada, Atlantic City, and on reservations when they are considering who to hire as cocktail waitresses to serve drinks to their patrons. So, given the atmosphere in many establishments that serve food and drinks, it comes as no surprise that sexual harassment has become ingrained into the culture.

How bad is the problem? According to the Harvard Business Review, more sexual harassment claims in the United States are filed by hospitality industry workers than by workers of any other industry. It is estimated that as many as 90% of women and 70% of men who work in this industry have reported experiencing sexual harassment.

While the #MeToo movement has helped shine the spotlight on the widespread sexual harassment and assault among members of the media, movie industry, politicians, and other high-profile professions, very little attention has been given to the issues hospitality workers routinely have to deal with.

USA Today offers some additional insights into why sexual harassment seems to be more accepted in the food and drink industry:

  • Men still rule the roost: While there are more female owners and managers in the bar and restaurant industry than ever before, the industry is still dominated by men. Owners, chefs, and managers often have absolute power, and this tends to feed their egos and make them believe they can get away with anything.
  • Sex is often part of the marketing plan: As mentioned earlier, many bars and restaurants build their entire business model around selling sex. This means that those on the frontline, especially female bartenders and waitresses, are expected to give the customers what they want. And since bartenders and waitresses depend largely on tips for a living, they feel enormous pressure to oblige.
  • Fast-paced environments: Restaurants are high-pressure environments, especially during busy times. With everyone rushing around to serve the customers, many snarky and inappropriate comments are made in the heat of the moment.
  • Work done in close quarters: Bartenders, waiters, waitresses, bus boys, dishwashers, chefs, and cleaning staff often work together in very tight and enclosed areas. This makes it more tempting for workers to engage in inappropriate behavior.
  • Disproportionate number of young workers: The hospitality industry tends to hire most of its staff from the 16 to 34 age group. For many workers, this is their first job, and they may not have a clear understanding about what types of behavior are appropriate, and what crosses the line.

Another issue that makes sexual harassment such a widespread problem within the hospitality industry is that, like in the medical field, workers are often harassed by customers. In fact, customer-based harassment accounts for a large percentage of sexual harassment claims in the industry.

What Can be Done About Sexual Harassment in the Hospitality Industry?

There are many steps that need to be taken in the food and beverage industry to effectively address the problem of sexual harassment. Here are a few of the most important:

  • Create strict anti-sexual harassment policies: It all starts with making absolutely clear to all who work at the establishment that sexual harassment will not be tolerated. If an employee believes that the company doesn’t care about it, tolerates it, or ignores it, they are much more likely to engage in inappropriate behavior. Bars, restaurants, and other establishments in the hospitality industry need to make a commitment to create a safe work environment for everyone.
  • Implement more effective reporting procedures: Having a good policy on paper is a start, but it does little good if there is not an effective way for an employee to report harassment. For example, if you are supposed to report harassment to your manager, and the manager is the one who harassed you, your complaint is not likely to get too far. There should be a separate department, perhaps online or through human resources, where an employee can safely report harassment and know that their complaint is being investigated.
  • Give all managers and workers comprehensive sexual harassment training: Everyone in the company needs to be fully trained on the sexual harassment policy, and what constitutes inappropriate behavior. There should also be training on how to effectively intervene when someone witnesses harassment, so the situation can be diffused.
  • Implement policies to protect employees from customer-based sexual harassment: Finally, restaurants and bars need to be fully committed to protecting their employees from being harassed by customers. For example, if an employee is uncomfortable serving a patron after they have made inappropriate remarks and/or advancements, they should have the right to stop serving that person. The establishment should also have a policy in which they warn customers who behave inappropriately, and if they do not comply, ask them to leave.

Harassed in the Workplace? Contact Our Experienced Alabama Employment Lawyer

If you have experienced sexual harassment as a hospitality industry worker or a worker in any other industry, it is important to speak with a skilled attorney, so you fully understand your legal rights and options. Attorney Kira Fonteneau has over 13 years of experience aggressively advocating for working people in Alabama. Kira was recently appointed president of the American Civil Liberties Union of Alabama, and she has a successful track record obtaining justice for those whose civil rights have been violated in the workplace.  For a consultation with attorney Fonteneau, call our office today at 205-564-9005. You may also send us a message through our online contact form.

I Believe my Rights have been Violated in the Workplace – What Can I do About It?

/0 Comments/in /by

Employees who face a difficult work environment are typically under a great deal of stress, and they often have a hard time focusing on their jobs. This could be due to disagreements, disputes, or hostility from a manager, supervisor, co-worker, or multiple parties. Workplace challenges can sometimes be chalked up to personality clashes, differing worldviews, and other common sources of conflict. However, when those disputes arise because of an employee’s membership in a protected class like race, sex, pregnancy religion or national origin, employers and co-workers may cross the line into violating the law.

No matter where you work or what type of job you do, you are entitled to certain rights in the workplace. For example, your workplace should be free of:

  • Safety Hazards: It is the responsibility of every employer to take reasonable measures to ensure a safe work environment. For example, if you work with dangerous machinery or equipment, you should be wearing the appropriate safety gear. You also have a right to expect a workplace free of toxic substances and other hazards that could make you ill.
  • Discrimination: Your employer is not allowed to discriminate against you on the basis of age, race, gender, religion, disability, national origin, pregnancy, or any other protected class. For example, your employer is not allowed to terminate you, turn you down for a promotion, or deny a pay raise simply because of a protected characteristic.
  • Harassment: You should not have to endure offensive, humiliating, intimidating, or threatening comments or actions because of a protected characteristic. One common example of this is sexual harassment. Whether it is a manager or supervisor harassing an employee, or the employee being harassed by another co-worker, workplace harassment is against the law and should never be tolerated.

What Can I Do If I Believe my Rights have Been Violated in the Workplace?

If you feel that one of your protected rights was violated at work and you wish to take action, you have some options available. These include:

Informal Negotiations

Some employment law violations can be addressed by resolving the issue directly with the employer without the need to take the matter to court. This often involves reporting the concern to the employer and giving them a chance to respond. For example, you may be seeking certain forms of relief; such as being transferred to another department where you won’t have to work around the individual who was harassing you or an adjustment to your pay to conform to what the employer is paying your co-workers.

Filing a Charge of Discrimination with the EEOC

If reporting it internally does not work, you may need to take further legal action. For most types of discrimination violations in Alabama, you must first file a complaint with the Equal Employment Opportunity Commission (EEOC) before filing a lawsuit. If you think you need to file a Charge, you should contact a lawyer to help you draft your Charge.

The EEOC may investigate your claim, ask you to participate in mediation with your employer, or take other actions. At the end of an investigation, if the EEOC finds conclusively that a violation of law occurred they will make a cause finding and attempt to get the employer to settle with you.  This is rare. Normally, the EEOC simply issues a “right to sue” letter that says it cannot determine that a violation occurred. This does not mean you do not have a case.  It merely gives you the right to file your lawsuit in Court. There are very tight deadlines in which to file an EEOC charge. In Alabama, EEOC Charges must be filed within 180 days from the last act of discrimination or they will be lost forever.

Private Litigation

Once you receive a “right to sue” letter, you can proceed with litigation against your employer. You have only 90 days from the time you receive the Right to Sue Letter to file your lawsuit. When preparing your lawsuit, you must retain as much documentation as possible to prove that your employer violated the law. This may include company documents and emails, photos, the testimony of witnesses, video recordings, audio recordings, and many other things. You should also work with an experienced attorney who knows how to present the facts and evidence in a way that is likely to persuade the court.

Speak to a Skilled Alabama Civil Rights Attorney

If you believe your rights have been violated in the workplace, there are some legal avenues available to you. The first step is to contact an experienced civil rights lawyer. Your lawyer can thoroughly assess your case, advise you of your rights, and review your options.

Since 2005, attorney Kira Fonteneau has been an aggressive advocate on behalf of working people in Alabama who have experienced workplace discrimination. Kira has an in-depth understanding of the state and federal discrimination laws and a successful track record of pursuing these types of cases in both the state and federal courts. To schedule a consultation with one of our attorneys, contact our office today at 205-564-9005 or send us a secure and confidential message through our online contact form.