Mississippi Litigation Lawyer & Attorney : Bradley Arant Law Firm : Serving Jackson, Gulfport, Biloxi, Tupelo, Hinds County, 5th Circuit

On March 17, 2008, Governor Haley Barbour signed the “Mississippi Employment Protection Act” into law. The law covers every employer in Mississippi and mandates that they shall register with and use the E-Verify status verification system in hiring new employees. The requirement takes effect on July 1, 2008, for all Mississippi covered entities with 250 or more employees. Employers with fewer employees must comply by July 1, 2009, July 1, 2010, or July 1, 2011, depending upon the size of the employer. Failure to comply may result in specified penalties, monetary fines, and imprisonment. The law will be enforced by several state agencies, including the Department of Employment Security, State Tax Commission, Office of the Secretary of State, Department of Human Services and the Office of the Attorney General.

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Clark v. Paragon Systems, Inc., No. 06-30934 slip op. (5th Cir. Apr. 3, 2007), an unpublished opinion, considers the effect of Hurricanes Katrina and Rita on a litigant’s deadline to file a lawsuit within 90 days of receiving a right-to-sue notice from the EEOC. Construed most liberally in favor of the plaintiff, various orders entered after the hurricanes would have suspended operable deadlines until November 25, 2005. Ninety days from that date – the last day on which the plaintiff’s complaint was required to be filed – was February 23, 2006.

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On Thursday, May 10th, the Jackson office will host a complimentary luncheon workshop focusing on wage and hour issues. The program will be held at The Edison Walthall Hotel in Jackson, Mississippi.

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On February 1, 2007, the Fifth Circuit Court of Appeals, in Boggan v. Miss. Conference of the United Methodist Church, No. 06-60782 (5th Cir. 2007), affirmed a ruling by the Southern District of Mississippi dismissing a Title VII race discrimination claim under the doctrine of the minister-clergy exception. The Plaintiff, a former minister, had filed a suit alleging race discrimination against the Mississippi Conference of the United Methodist Church. The lower Court dismissed the claim as being barred by the minister-clergy exception to Title VII. The Fifth Circuit agreed and stated that this exception is "firmly rooted" in the Free Exercise clause of the First Amendment of the United States Constitution and has been recognized in at least two other past Fifth Circuit opinions. The Court went on to note that they would continue to recognize the exception to Title VII's ban on discrimination unless the United States Supreme Court ruled otherwise.

For more information, please contact Will Manuel.

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The Fifth Circuit Court of Appeals, in Brackens v. Tex. Roadhouse in Wichita, No. 06-50736, slip op. (5th Cir. Jan. 31, 2007), affirmed a district court’s dismissal of claims against a restaurant chain for breach of contract, unprofessional conduct, and claims under Title VII, even though the district court liberally construed the pro se plaintiff’s complaint. Brackens, an African-American male, was dining at a Texas Roadhouse restaurant in Wichita, Kansas when the facility played Gretchen Wilson’s “Redneck Woman” over the speaker system, prompting its employees to dance to it. Brackens sued and asserted that the song’s use of the term “redneck” was racially offensive to him because as a black man, he could never be a “redneck.” Further, Brackens asserted that the restaurant had breached an implied contract created when he and his family ordered their meal, and that the restaurant engaged in unprofessional conduct.

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In a Fair Labor Standards Act (FLSA) case, the Fifth Circuit affirmed an attorneys’ fees award of $129,805.50 although the plaintiff was awarded $23,357.30 in overtime damages. Howe v. Hoffman-Curtis Partners Ltd., LLP, No. 05-21091, slip op. at 1 (5th Cir. Jan. 30, 2007). After the jury determined that the plaintiff had worked a total of 207 hours of unpaid overtime, the U.S. District Court for the Southern District of Texas (Houston Division) awarded the plaintiff $11,678.70 in unpaid overtime wages and an additional $11,678.70 in liquidated damages (pursuant to Section 216(b) of the FLSA) based on the district court’s ruling that the defendant failed to show that it acted in “good faith” and had “reasonable grounds” to believe that its actions complied with the FLSA. The plaintiff sought $134,884 in attorneys’ fees, but the district court reduced the amount of attorneys’ fees awarded to $129,805.50 – still more than five times the amount of the plaintiff’s damages award. A successful FLSA claims carries with it the mandatory recovery of reasonable attorneys’ fees to be paid by the defendant, which is decision made by the court. 29 U.S.C.A. § 216(b).

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On January 4, 2007, the Fifth Circuit Court of Appeals, in Sobrinio v. Medical Center Visitor’s Lodge, Inc., No. 06-20671 (5th Cir. 2007), examined a claim by an employee of a Texas motel that houses patients of a local Medical Center. The Plaintiff, Mr. Gregorio Sobrinio, acted as a janitor, security guard and a driver for the motel's guests, who were often out of town. Mr. Sobrinio sued his former employer claiming that he was paid below the minimum wage and was not properly compensated for overtime in violation of the Fair Labor Standards Act.

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The Supreme Court of the United States has just changed the landscape in retaliation cases and every employer needs to take note. As everyone with more than 15 employees knows, Title VII of the Civil Rights Act of 1964 prohibits discrimination in hiring, firing, compensation, or other terms, conditions or privileges of employment on the basis of race, color, religion, sex, or national origin. Title VII also provides that an employer may not discriminate against an employee because he “opposed any practice made unlawful” by Title VII. Retaliation cases are dangerous because juries are made up of employees – all of whom believe that if you file a complaint at work your employer will get back at you.

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On September 29, 2006, the National Labor Relations Board (NLRB) issued a long-anticipated decision in Oakwood Healthcare, Inc., 348 NLRB No. 37, clarifying which employees are considered “supervisors” for purposes of the National Labor Relations Act (NLRA). Section 2(11) of the NLRA, which was enacted by Congress in 1947 to exclude supervisors from the protections of the NLRA, defines “supervisor” as: any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

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The National Labor Relations Board (“NLRB”) is expected to rule this fall on the legality of “neutrality agreements” – a device used extensively by unions to successfully organize employees in lieu of the NLRB secret ballot election process.

A typical neutrality agreement between an employer and a union commits the employer to “remain neutral” while the union attempts to organize the employees and further commits the employer to recognize the union if it obtains signed membership cards from a majority of the employees rather than having the matter submitted to a secret ballot election under the auspices of the National Labor Relations Board.

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