Bernard: Hey, it’s Bernard Nomberg from Nomberg law firm. Back on another Tuesday to talk about the law. I’ve got my buddy Allen Arnold here; I appreciate you coming. And today, we’ll talk about various employment law topics. It’s one of the specialties that Allen handles. Allen, if you would tell us a little about yourself and your firm?
Allen: I’ve been practicing law for 13 years now. I have almost exclusively practiced labor and employment law my whole career—that governs the Fair Labor Standards Act for overtime wages and minimum wage compensation; the Title Seven of the Civil Rights Act that protects you from discrimination based on your race, sex, religion, or national origin; Age Discrimination in Employment Act and the Americans with Disabilities Act. We also cover things like the Family and Medical Leave Act and two retaliatory discharge statutes in Alabama for jury duty—your employer can’t fire you because you miss work to serve on a jury, and they can’t fire you if you file a claim for workers’ compensation benefits or have an on the job injury.
Bernard: Before we get into those details, and we’ll get into that, let’s talk about the 5 Points Law Group and your partners, and tell us a little bit about them.
Allen: Well, we’re very excited about 5 Points Law Group. It’s a new firm; we were formed in May of this year. We work with Kira Fonteneau and myself do Labor and Employment law. We have Burton Dunn, who does conservatorships and elder care issues. And we have Kristin Sullivan, who does wills, trusts, estates and probate matters. And then we have Heather Fann, who helps with family law for those having a hard time with their family life.
Bernard: I know most of the lawyers in this firm, and they’re not new lawyers; it’s just a new firm. They’re very experienced, and they really know what they’re doing now. Allen, let’s go into the area of the fact that most Alabamians who were employed are at-will. What does at-will mean?
Allen: Well, the simple answer is it means an employer can terminate your employment at any time for any reason. It also means you can quit at any time for any reason. But any reason really does mean any reason. Unless they’re the exceptions, they come in the laws I practice in for employment law. Those are exceptions to that doctrine where they cannot discriminate against you. If they fire you because of your race or because you’re a woman, or you’re exposed to a hostile environment and you complain about that—that is the exception to at-will employment, and that’s what we help people with.
Bernard: This may be a crazy example, but if today is a solid color blue shirt day, and somebody walks in, and they’re wearing a yellow stripe shirt, is that a terminable reason?
Allen: Under the at-will doctrine, it would be. But let’s say you walk in with a striped shirt and a lady walks in with a striped shirt, and the woman is fired, and you’re not. That might be a pretty good example of sex or gender discrimination, and that’s what we could help you with because then they’d have to explain why you’re being treated differently.
Bernard: I know that, at least in part, unemployment claims kind of tag along with a lot of the claims that you’re looking at. Let’s go into that for just a minute. How does one apply for unemployment, and when should you not file for unemployment, and those kinds of things?
Allen: Well, generally, filing for unemployment consists of going to the Alabama Department of Labor website and calling the 1-800 number and initiating a claim. It’s a fairly simple process. Albeit, it takes a while for a claim to ever come through. However, before you file a claim, if you think for some reason your termination or the end of your employment was illegal or wasn’t right, you should consult an attorney first. One of the loopholes in the law that favors employers is that if you file for unemployment compensation benefits, and the company opposes you and has a hearing about why you were legally fired, and the employer wins the hearing, your claims under most of the other statutes that I help people with go away because a judge or a court, even though it’s not one appointed by the president of the United States, it’s just an administrative law judge at the unemployment department of labor, they can’t contradict each other. And if they decide you’re fired legally at the Alabama Department of Labor, no judge can overrule that. And that’s why you should check with an attorney prior to filing your unemployment to protect your rights because the potential of your lawsuit can exceed the value of your unemployment claim, and you don’t want to hurt your potential for a case. It’s always a sad day when I have to tell somebody, “You’ve got a case, but because of the unemployment.” It’s always disappointing. So, check with an attorney first quickly right after you’re terminated because you do need those benefits; you’ve got a family to feed, but you also still need to make sure you’re not losing something in the process.
Bernard: That’s all great advice, and I think that’s well-founded. And it’s very important for folks to know this. What about those folks who are still employed with the company? They feel like they’re in hot water, or they’ve been told they’re in hot water, so to speak, and they get called in by management for a meeting. A lot of times, we’ve been asked by our clients, “Can I record the conversation?” What kind of advice do you have for folks about that?
Allen: In Alabama, you are permitted to record a conversation that you are a part of. That doesn’t mean you get to leave your cell phone in the manager’s office and record two people talking—it means when you’re part of a conversation, and you think you’re going to be in hot water, don’t hesitate to turn on your smartphone and record the conversation. You do not have to let them know you’re doing it. And that is a great way to protect yourself and your rights and for everybody to have an accurate memory of what actually happened. Many times I like to say that everyone’s telling their own truth. And a recording takes that problem out of the equation and can be very helpful in a wrongful termination suit because then there is no dispute about what was said during those meetings for discipline or termination.
Bernard: Again, solid advice. Let’s say that in this scenario, somebody has gone in and met with their manager, and the manager says, “We have to let you go for whatever reason,” and now you’re terminated, you’re no longer an employee, and you’re escorted out of the building. But now, you think you’ve got some type of legal grounds to pursue, and somebody wants to come in and meet with you [Allen] about their potential case. What types of things should they bring to the meeting? What type of information should they have, paperwork-wise or whatever, when they come into that first consultation with you?
Allen: For an initial consultation, things that are helpful are any pay stubs you have. They tell us so much information; they can help us. The first thing people ask, a lot of times, is, “How much is your case worth?” I’ll never know the answers till I look at your pay stub. It’s all based on your wages, and it’s not an arbitrary number, which sometimes we do see that on TV. And even the numbers on TV are based on the person and their numbers and their payroll and how that’s done. Plus, it will tell us where to send the lawsuit. Other information that’s helpful if it’s a workers’ comp claim—if you think you’re fired because you filed a workers’ comp claim, bring us the paperwork for the report of injury. Bring us any disciplinary notices that your employer gave you ever—both before and after the injury. If you have performance evaluations in your possession, bring those. Any document that really has to do with your performance or your workplace, good or bad, helps us evaluate your case. The primary thing to bring that’s also helpful are handbooks and policies. It is very helpful in any sort of wrongful termination case to show that the employer didn’t follow his own rules they set out for you. But what helps us as attorneys to bring your case is to be able to allege from the beginning that they broke their own rules. But we need to know those rules first.
Bernard: It is pretty incredible how often you see that where you get the handbook, and you’re going through discovery and depositions, and the managers just don’t know what the policies and procedures are, and they just follow their own way of doing things. So those handbooks can be great information to help with your lawyer.
Let’s talk about if you feel like you’re having issues at work, but you’re still employed, you’re still going to the job, and you’re doing your work, but you’ve got a manager or supervisor or coworker who’s giving you fits—whatever it may be—what are your thoughts about keeping a diary?
Allen: My thoughts about keeping a diary are if you’re going to do it, at the top of the diary, put in there “for my potential lawyer or my existing lawyer” on the top of each and every page. That means what you’re writing is done in anticipation of litigation, and that protects that diary for either an existing lawyer or future lawyer because you’re thinking about protecting your legal rights. A diary that you keep independently, or without maybe that little bit of protection, could potentially be brought out in the discovery of a case. And from experience, I can tell you diaries never make the employee look good in front of a judge or a jury because you’re putting your thoughts and your feelings, and sometimes just so you can get them out of your head, but they’re not things you necessarily need to share with 12 strangers, a court reporter, a judge and a deputy clerk—and especially not the employer you’re suing, who’s going to try and make hay out of. So just putting that little bit at the top cover of a diary that says “for my attorney” helps a ton because if there’s ever a hearing on the issue, the judge is going to sit there and look—they’re taking steps to protect, this is privileged information. Absolutely that is the way to go about that.
Bernard: The folks who think that they have a claim for discrimination, they can’t just file a lawsuit in federal court, can they?
Allen: For the most part, no. There are a few exceptions, but primarily almost every discrimination claim for race, gender, religion, national origin, age or disability all have to go through the Equal Employment Opportunity Commission. It’s essentially the first step in the process, and it’s not a bad process, but it does take time, and you have to kind of walk your way through it before you get what’s called a Dismissal and Notice of Right to Sue. That process is important. A lot of people go and file a charge on their own or go straight to the EEOC of their own volition. I, being an attorney who practices in this area, strongly advise against that. The commission means well; it really does, and I’ve got good things to say about many of the investigators here in Birmingham and down in Mobile and Biloxi. But they have a process they have to follow. And that process sometimes comes from Washington at a slower pace than the pace of cases handed down by the Supreme Court or the Eleventh Circuit Court of Appeals. It very much helps if a lawyer helps you draft your charge and makes sure certain things are stated, so they’re clear. Because a big argument an employer likes to make is “You didn’t bring it up the first time, so the issue is waived.” And that isn’t true, it’s because the investigator who took in your intake form without the help of a lawyer doesn’t read those opinions, doesn’t think about those issues, and you could put yourself in a position where you forgot a potential claim, or your claim may not succeed because you left out some information. And so, I strongly advise talking to an attorney about any discrimination claim. Our firm does that every day; we talk to probably 25 to 75 people every day to help kind of go through the process of figuring out and making sure if we can bring a charge. We make sure everything we can is done to try and make sure your discrimination case has the best chance of succeeding.
Bernard: And if folks want to get in touch with you about these types of cases, how can they reach you?
Allen: We have our website: www.5pointslaw.com
Bernard: Is that the number 5 or spelling it out?
Allen: That is the number 5. And we also have www.fonteneauarnold.com. And on that page, you’ll see a little more variety about the various areas we can help you with. There are several pages for each sort of category. For example, I spend a lot of my time on cases with the Family and Medical Leave Act, which is a highly regulatory technical law. And our intake forms and our process will make sure we find those things. Or if you think you’re about to take family medical leave, make sure you find the forms your employer should be giving you. A lot of times, employers skip the process because they’re going to give you FMLA anyway, and they don’t dot all the I’s and cross all the T’s. But then, if they let you go either during or right after that leave, those mistakes can help you with a case. You can also reach us at 205-252-1550, or Google our name, and any one of our potential numbers will pop up that will get you straight to us and to our staff, which will help initiate the beginning of your case or an intake form.
Bernard: Allen, this is all very informative information about employment law. Sure appreciate you sharing your expertise and wisdom in these areas. Guys, I think that’ll conclude for us today. Allen, again, I appreciate you coming on with us and sharing your knowledge. We will be back again next Tuesday on another area of the law. Of course, you can always reach me at www.nomberglaw.com. Our number is 205-930-6900.
Disclaimer: Please note that this transcript has been generated automatically and may contain errors, inaccuracies or deviations from the original video. It is provided as a convenience and is not intended as an exact representation of the content.