probate court labor relations speech

7/29/2019 Probate Court Labor Relations Speech

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Thismaterialispresentedforeducationalpurposesonly.Thismaterialisnottoberelieduponinlieuof

legalconsultation.Ifyouhavelegalissuesregardingemploymentorlaborlaw,consultyourcounty

attorneyoranotherlicensedattorney.Dr.GayleGearandthoseparticipatinginthisspeechmakeno

expressorimpliedclaimsasaresultoffollowingtheiradviceand/orpurchasingtheirservicesor

products.Theclaimsmadehereareanecdotalonly.2013GayleGear.

Labor Relations Law Update

Chief Clerks Conference

Speaker: Gayle Gear, Ph.D., J.D

September 10, 2013.

Thank you so very much for your invitation to attend

this conference. I would be remiss if I did not

acknowledge the wonderful experiences that I have had in

probate court as a lawyer filing estates in Walker County,

filing petitions for adoption in Jefferson County and in

Shelby County. My fondest memory is associated with

the adoptions of our two grandbabies, Chloe and Cole. On

each occasion, the clerks in the Shelby County Probate

Court were caring and took a personal interest in all thedetails of what was for us a complicated process. Several

years ago Kim Melton arranged to have our four-year old

grandson Cole assist with the adoption of his nearly two-

year old baby sister Chloe. The Judge shared a spare robe

with Cole who from the bench asked his Mom and Dad if

they would love Chloe forever and ever. The parentswere overjoyed and assured the Court that the love was

forever and ever. With that brother Cole lowered the


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gavel and granted their petition. Of course everything

was handled according to court rules, but the staff of the

probate court went further and touched our heart. It is my

understanding that every adoption is handled with

personal attention and love.

Equally touching was the adoption I handled in

Etowah County for a married couple who were unable to

have children. The Probate Judge welled up with emotion,

as we all did, during the adoption hearing of a dear littlegirl whose birth mother relinquished parental rights

because she felt she was not capable of rearing another

child. The mother felt it was best to share her daughter

with this loving family. The family and probate staff in

attendance could feel the power of Gods love.

I have also had the privilege of filing adoption

petitions in Jefferson County. The Probate staff under the

leadership of Judge Alan King efficiently handled these

petitions. The hearings were memorable events for the

families and their friends in attendance. But in mentioning

these counties, I know that I am overlooking so many actsof kindness extended everyday across the State of

Alabama in the various probate courts. For example: In

Winston County the staff of the probate office greets my


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husband with a friendly smile. His requests for

information and assistance are always met with

enthusiasm. You certainly must know how important your

work is to us. The only court people are likely to consult

in their everyday lives is the probate court.

As supervisors, you have additional responsibilities

in the probate court. You are relied upon to address

disputes or grievances in the workplace. When issues

emerge, you are called upon to promptly respond. Anunderstanding of labor relations law is a priority for the

probate judge and the chief probate clerk.

Why are labor laws necessary in the first place? The

answer is as you would expect: (1) to assure each

employee fair treatment; (2) so each employee canperform at his or her best; and (3) so that some employees

are not favored or disfavored by co-workers or

supervisors. Given our workforce is not made up of

robots, problems inevitably arise. Some are seemingly

trivial and some obviously very serious. Regardless, these

workplace issues affect productivity and build resentmentamong the employees. Persons who feel aggrieved tend

to take off more sick days, work less enthusiastically, and

cooperatively. Some grievances, when unaddressed and


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go unresolved, can end up in state or federal court. The

employer-county commission and in some instances

supervisors in the probate office can be held liable for

money damages. The employer can also be directed by

the court to reinstate employees or institute changes in

their practices. Larger counties have even been held under

court supervision for years at the cost of millions of

dollars.

Despite your best efforts as a supervisor, sometimesemployment disputes emerge in the probate office. Not to

say that some disputes are not legitimate, but we must

remember sometimes people have personal issues that

affect their work performance and their perceptions of

fairness. Some employees are overly sensitive and

frequently express concerns that they are being treated

unfairly. On occasion, others believe that they are being

punished because they did not support the winning

candidate during a recent probate judge election. Some

blame discrimination as the reason being overlooked for

promotions or for poor performance evaluation. While

you may honestly believe that their concerns lack serious

merit, you must timely address these concerns in an

impartial manner. If you cannot, you must refer the matter

to others with greater supervisory status.


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I recognize that as a supervisor you are likely

inundated with advice on labor relations. There seems to

be so many things to worry about in the things you say

and do in your supervisory capacity. Take heart, you are

not alone. Teachers of young children--even Kindergarten

teachers-- are now being counseled not to hug children.

Fears of violating the First Amendment have driven some

schools to skip reciting the Pledge of Allegiance to our

great country. I fear that we have devolved into aneurotic politically correct society. Hopefully this too

shall pass and once again children will be able to sing in a

public school God Bless America.

That said, you are keenly aware of the importance of

labor relations law. I recognize that you regularly receive

guidance from your county personnel department as well

as the States Unified Judicial System. I understand that

many here today also attend conferences devoted to labor

laws.

I hope to contribute today in some measure by

focusing on the importance of addressing employmentissues (1) promptly; (2) at the local county level; and (3)

accessing the resources readily available. In so doing the

county may avoid costly and protracted civil litigation.


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From my review of over two decades of cases

involving probate courts, it seems that the prospect of

expensive and time-consuming litigation could have been

minimized. I say this not because I have any particular

dislike for the court system or lawyers for that matter, but

because handling employment issues at your county level

is best for many reasons that we will discuss this

afternoon.

I also discourage litigation because it generates longlasting ill-will among your employees. It should not be

overlooked that litigation may subject you individually to

money damages. And your behavior may also subject

your county to money damages and, in some instances,

ongoing supervision by a federal court.

I would also give this advice to any employee who

contemplates civil litigation. Few cases filed in court lead

to a jury trial. In fact, very few employment disputes --

even serious ones-- are eligible for resolution in a

federal court. Unfortunately many people have been led

to believe litigation is the most effective way to resolvedifferences. The reality is quite the contrary. A federal

court is a court of limited jurisdiction. In employment

disputes, the court addresses only disputes involving


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certain types of discrimination. Moreover, the federal

court recognizes that it is not superior to state court. In

many instances the findings of a county personnel board

or civil service commission will be adopted by the federal

judge, particularly when the parties have fairly and fully

litigated the employment dispute.

Most employment litigation stem from claims of

unfair treatment in the workplace and discrimination.

Regardless of the nature of the dispute, resolution isenhanced with open communication and documentation

of efforts to address workplace issues. Employees benefit

from regular performance evaluations. Employees also

benefit when allowed an opportunity to correct

performance deficiencies.

The very first resource readily available to all parties

is the employee handbook. This document sets forth the

rights and responsibilities of the employer and the

employee. Several larger counties have a civil service

commission or a county personnel board. These

personnel-type agencies also issue rules regulating payand classification, resolution of grievances, and hearing

disciplinary appeals. Acting in its quasi-judicial capacity,


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the board provides a full and impartial hearing to the

aggrieved employee.

At this hearing, the employer must offer proof of thecharges that have been filed against the employee. The

charges must be precise, clear, and definite. An employee

is given an opportunity to cross-examine the employers

witnesses and call witnesses on his behalf. After

consideration of the evidence presented by both parties,

the board issues findings of fact and a decision. TheBoard has the power to uphold, reverse or modify

punishment. This ruling is a final decision absent an error

of law.

These proceedings are relatively expeditious and

throughout opportunities for settlement can be pursued.Costs are generally not prohibitive. In fact, in many

instances lawyers are not required. Witnesses are not

subjected to depositions.

The boards decision may be appealed to the county

circuit court. The circuit court does not rehear the

caserather the transcript of the board hearing is

reviewed for legal error or due process violations.

Reversing the boards final decision is rare. The

decision is upheld if it is based on substantial legal


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evidenceinterpreted to mean if there is any legal

evidence to support the decision. The court does not have

the power to substitute its judgment for that of a civil

service commission or county personnel board.

Compare a board hearing to litigation in federal

court. Costs quickly become astronomical compared to

the costs associated with a county board hearing. Even

when civil litigation is pursued few cases proceed to trial.

The defendant-county will almost certainly file a motionfor summary judgment at the close of the discovery phase.

While the court does not presume to act as a jury, the

court has the power to dismiss cases in advance of a jury

trial under some circumstances, particularly when the

court deems the evidence insufficient as a matter of law.

Not allowing the case to proceed does not necessarily

mean that the employee has been treated fairly; rather it

likely means that the evidence is insufficient in

consideration of the claims before the court. It should be

evident at this juncture that the civil court is not a super

personnel board.

Although only a few cases reach a jury trialthe

costs associated with litigation are astronomical in terms

of time, money, and loss of work hours for all


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concernednot to mention the turmoil in a probate office

where the work must go forward. Because of this,

counties often agree to settle, without admitting fault, in

order to curb the escalating costs of going forward and the

risks attendant to a jury trial. In some instances, the court

will step in and appoint a mediator to resolve the case.

In the very unlikely event that a jury trial is held,

regardless of which party prevails, the verdict seldom is a

sweet victory. Money damages are often not enough tosatisfy the litigant. For example, the litigant may have

been out of a job while the case is pending. While back

pay may be ordered, it is difficult to calculate the value of

lost promotional possibilities or training opportunities.

During the entire process, the litigant has had to re-live

the events that gave rise to the employment dispute in the

first place. The irony is that lawyers for a prevailing

plaintiff may be awarded attorney fees in excess of the

plaintiffs jury verdict. As you know, in federal

discrimination cases the prevailing plaintiff has a right to

court costs and attorney fees.

As you can see, litigation is complex: convoluted

laws, confusing precedents, and changing interpretations

of the laws make the process laborious to the extent there


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is a cadre of labor lawyers. Treatises are devoted to

such matters. Over the years discrimination claims have

been broadened to include ancestry or ethnic

characteristics among the identifiable classes in Title

VII cases. Gender discrimination has been broadened to

prohibit discrimination related to pregnancy and health

issues related to pregnancy.

Despite shifts in the law, we can take comfort in this

stable reality: there are fundamental principles thateffective employers follow when addressing workplace

issues. These fundamentals are easy to understand and are

the foundation of all labor laws. In essence, effective

employers and supervisors adhere to the golden rule

taught in our homes, our schools, and at our churches.

Employers and supervisors must be encouraged and

regularly reminded to follow these fundamental principles

even when they have the power to bypass it or on some

personal level want to bypass fair play in the workplace.

The golden rule would frown upon a recently elected

probate judge who treats more favorably those whocampaigned for him. The golden rule would frown upon

an employee who immediately charged discrimination


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when she knew that her supervisor is simply a stickler for

details.

Lets begin our general discussion of labor laws andthen follow up with an actual case filed against a county

and a chief probate clerk. As you know, local personnel

boards have been put in place so that employment

disputes are addressed promptly and impartially. For the

employer, such a system assures efficiencyone that is

not bogged down with internal strife among theemployees or with the supervisors. In addition, there are

federal labor laws that provide a framework for efficiently

addressing workplace disputes. All states have enacted

laws parallel to the federal statutes that prohibit

discrimination in employment. For the most part state

laws are patterned after Title VII enacted in 1964 and

amended on several occasions. As you know, Title VII

was the first major, modern, federal discrimination

statute. Employment discrimination laws protect such

discrete groups as race, gender, sexual harassment,

religion, national origin, age and disability. A plaintiff in

a Title VII looks to the employer-county for monetary

compensation and other relief.


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At the local level, employment practices are

governed by county employee handbooks. When

confronted with an employment dispute, the employee is

directed to file a formal complaint with an immediate

supervisor. The handbook likely directs the employee to

seek guidance from the human resources director related

to such matters as discrimination, family medical leave,

workplace safety violations, workplace accommodations,

and wage and hour disputes.In some instances, it may be necessary to engage the

countys personnel board or civil service commission.

These independent entities customarily handle such

matters as pay and classification, hiring and promotions,

and grievances. They often play a quasi-judicial role in

matters involving grievances and appeals from

disciplinary actions.

There are also other agencies outside county

governance. For example, if the dispute involves overtime

or unfair pay practices, the parties may seek guidance

from the U.S. Labor Departments Wage and Hour Board.This agency is easily accessed by phone or internet and

available to supervisors as well as non-supervisory

personnel. This agency also provides educational


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programs in addition to personally answering your

questions concerning laws governing overtime and

minimum wage.

There are agencies that are commissioned to address

discrimination in the workplace. The prime example is

the Equal Employment Opportunity Commission

(EEOC). This agency has the power to investigate claims

filed by employees alleging discrimination based on a

number of factors: race, gender, age, religion, andnational origin, disability, sexual harassment, and other

matters such as equal pay for equal work. The EEOC also

has power to enforce the anti-retaliation provisions of

each of the federal laws within its jurisdiction.

As you know, the EEOC has a local Birminghamoffice. Among its many functions, EEOC is

commissioned to investigate claims pertaining to the

following federal laws that prohibit discrimination in the

workplace in both public and private employment.

(1) Title VII pertains to race, gender, sex,religion, national origin, and retaliation for

reporting or assisting in the EEOC investigation.

Sex discrimination has been expanded to include

pregnancy based discrimination. Remedies under


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Title VII include: reinstatement, retroactive

seniority, and back pay, and other limited

compensatory damages.

(2) The Age Discrimination in EmploymentAct (ADEA) affords protections to employees

over forty years of age. This law also has a

prohibition against retaliation for reporting

discrimination or participating in the process

intended to remedy such discriminatorypractices.

(3) The American Disability Act (ADA)pertains to disability and workplace

accommodations.

(4) Equal Pay Act (EPA) pertains to equalcompensation for equal work. We likely all arefamiliar with the Lilly Ledbetter Fair Pay Act of

2009 that expanded the ability of the plaintiff to

recover for pay discrimination.

Among the administrative steps, the aggrieved

employee must file a timely claim with the EEOC. Timely

generally is interpreted to require filing within 180 days

of the occurrence, that is the discriminatory event at

issue. The same is true under ADA and ADEA. Lawyers

may file other claims of workplace discrimination with


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the EEOC in order to have the benefit of an investigation

and to allow for possible conciliation of the matter.

The EEOC conciliation process allows the parties todiscuss the case without fear that such will be discussed in

any public forum, including in a federal court. EEOC

Investigation is often quite thorough, the employer is

notified of the charges and called upon to respond and

produce employment records. The EEOC has the power

to go on-site and interview witnesses.

The EEOC legal staff may elect to file suit on behalf

of the employee-claimant. If the EEOC declines to pursue

the case it does not mean that the case had no merit. The

EEOC then issues its findings and determination along

with a right to sue letter allowing the claimant to bringsuit. These findings by the way are not binding at trial but

are helpful in getting the parties to the bargaining table.

Ultimately, if the matter is not successfully resolved,

the claimant may sue. The federal court is often the

forum selected because the county will most certainly be

one of the defendants, especially in matters based on

discrimination in the workplace.

Let us examine one case and as we do, I would like

you to evaluate how it was handled. Compare the


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difference between handling the dispute promptly at the

local county level and that of filing a lawsuit in federal

court.

Needless to say, lawyers are mindful of previous state

court proceedings when filing employment discrimination

suits. County attorneys are equally mindful that previous

administrative rulings may afford additional defenses.

Before we begin with an actual example of a lawsuit,

let me list for you factors that may help you decide which

avenue is generally best in addressing employment

disputes. Consider the following:

1.TimelinessResolution speed at various stages.2.Available relief.remedies available.3.Control control over the process.4.Coststhe time, effort, and money spent.

Lets begin shall we. These are allegations pertaining

to an actual employment dispute that ended up in

federal court in Alabama. Lets troubleshoot thissituation and determine the many opportunities that

were readily available to resolve this dispute at the

outset.


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Remember, these are the allegations in a complaint

filed in federal court many years ago. We will refer to the

plaintiff as Ms. Smith, although this is not her real name.

Since the incident giving rise to the employment dispute

occurred in the 90s and the parties are no longer in

office, there is no need to speculate culpability--especially

when the case never got beyond the allegation stage and

the opposing party did not get an opportunity to tell their

side of the events. This is simply presented for thepurpose of todays discussion.

As you examine the allegations, think about the

opportunities and the agencies available to timely address

these issues.

Here we go. Ms. Smith, a part-time employee in theprobate office in July 1997, filed a complaint against (1)

her employer - the County - and (2) the Chief Clerk of

the County Probate Court. The chief clerk is sued

individually for money damages. The employer-county is

sued for money damages and for the actions of the chief

clerk. Remember, Ms. Smith had served as a part-timeemployee under the supervision of the chief clerk since

September 1992. Here are the allegations in the

complaint:


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The chief clerk hired Ms. Smith to a temporary

position in the probate office in September 1992.

Soon after, he told her that he would grant her a

permanent position. Ms. Smith claimed that it

became apparent that a promotion to a full time job

would require her to give in to his sexual advances.

She refused his advances, which were both physical

and verbal in nature. He invited her out to dinner,

made comments about getting comfortable with heron the couch. He grabbed her around her waist, put

his hand in her blouse and grabbed her breast. She

also alleged that he grabbed her buttocks. She did

not receive a permanent position. Ms. Smith

complained about these advances to another

supervisor - a female supervisor - who told Ms. Smithto handle it herself.

Time passes. The probate judge did not relent

and Ms. Smith did not comply with his requests that

were clearly outside the scope of the terms and

conditions of her employment. Ms. Smith was never

promoted. During her employment, Ms. Smith was

diagnosed with multiple sclerosis. That disease did

not affect her ability to perform her work. That

disease did however diminish her ability to lift her


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legs and to walk. She therefore did ask the County

and the probate judge to cover some exposed

telephone cords that were on the floor of the probate

office over which she had tripped. Defendants

refused. Ms. Smith continued to trip over the exposed

cords and as a result was eventually injured. Ms.

Smith also asked the defendants to provide her a

parking space so that she could have easier access to

the probate office, but they refused. Consequently,she had to park in the street and as a result she

received numerous parking tickets.

Lets analyze this.

What resources are clearly available at the local level

to address this employment dispute?

The countys personnel handbook was likely

immediately available to all parties. In many counties the

handbook is published on line and regularly updated. The

handbook would certainly detail the employers policy

against workplace violence, hostile work environment,

sexual harassment, and discrimination of all kinds

(including sex, disability, age, national origin). The

handbook likely sets out the employers stance against

retaliation for filing claims of discrimination. The


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handbook would most certainly discourage supervisors or

others from taking any actions that may dissuade others

making or supporting a charge of discrimination. The

handbook would address rights under the Americans with

Disability Act (ADA) and the steps to follow when an

employee seeks an accommodation.

You can be assured the county attorney has the fond

expectation that employees will read and follow the rules

and when necessary contact the designated local officialassigned to offer assistance.

The handbook will likely include steps to follow in

reporting concerns. If that is not appropriate, then the

employee would likely be directed to a designated

official within the administration. For disabilities, there isusually a designated official that handles violations of the

American with Disabilities Act. It is also likely that

bulletin boards are awash with federal anti-discrimination

posters.

In this case, it appears all county regulations were

bypassed when the immediate supervisor allegedly told

Ms. Smith to handle it on her own. To have avoided

county liability, what should have been done?


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In all caseseven when the employee asks you to

keep it a secretyou must report the allegation to the

designated official within the county administration. An

impartial investigation must be undertaken. The employee

must be assured that her complaints will be investigated

and taken seriously.

Had proper and timely reporting been done, the

county may have avoided civil litigation. In any event, at

least Ms. Smith would have been protected from theongoing mistreatment by one of her supervisors. Under

the federal laws, Ms. Smith timely reported as required.

The supervisor apparently ignored her complaints. This

failure to address the problem that was timely reported

subjects the county to liability for money damages and

other relief as directed by the court. But, there is more

exposure. The county may be responsible for the

impermissible acts of the chief clerk since he was acting

in a supervisory position.

In a separate matter the county failed to

accommodate Ms. Smiths disability that qualified asimpairment under the American with Disabilities Act. Her

request for an accommodation also was ignored by her

immediate supervisor. The court may declare the county


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has an unofficial policy of ignoring such claims and order

further relief.

What happens next you wonder? It is not surprisingthat Ms. Smith filed a charge with the EEOC claiming she

was subjected to sexual discrimination. Under these

allegations, she rightfully claims quid pro quo

harassment. The impermissible trade was sex in

exchange for a permanent full-time job. Under these

allegations, she also rightfully claimed that her workplaceconstituted a hostile work environment. The acts of

harassment were severe in nature, pervasive and the

actions impaired her ability to perform her job.

Ms. Smith also claimed that she had a recognized

impairment under the ADA and the county refused tooffer a reasonable accommodation. Recall she claimed

she could do her job with a reasonable accommodation.

The law does not require an employer to accommodate an

unreasonable accommodation. Covering the exposed

wires was not an unreasonable accommodation nor was

providing a physically accessible parking space.Reasonable accommodation was requested and no action

was taken by either the chief clerk or the county.

Lets continue:


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After receiving a right to sue letter from the EEOC,

Ms. Smith filed suit. She sued the chief clerk and the

county. She filed the following federal claims against

them both: (1) quid pro quo and hostile work

environment sexual harassment and (2) disability

discrimination. She also filed the following state claims

against the county and the chief clerk: (1) assault and

battery; (2) invasion of privacy; (3) outrage; (4) negligent

and wanton supervision and retention. In her prayer forrelief, Ms. Smith demanded compensatory and punitive

damages, attorneys fees and costs. She did not ask for

instatement to a full-time job. Other types of injunctive

relief that may be imposed include sexual harassment

training, modification of the countys supervision and

retention practices.

Ms. Smith also sued the chief probate clerk

individually claiming he violated the Equal Protection

Clause of the Fourteenth Amendment of the United States

Constitution. She claimed he altered the terms and

conditions of her employment by requiring sexual favors

in exchange for full time employment.

Ms. Smith sued the county for damages because the

chief clerk as her supervisor and that his actions were


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taken within the line and scope of his employment. The

county likely retained separate counsel for the chief clerk

as the countys legal position would be in conflict with

the clerk behavior.

The chief clerk may attempt to claim that as a state

employee he has qualified immunity which would

insulate him from personal liability from money damages.

The court would likely deny that defense reasoning that

the conduct alleged violated clearly established law ofwhich a reasonable person would have known.

In closing, I submit that all our laws are based upon

Judeo-Christian Laws. It is then appropriate to consider

the words of a great teacher. In the Sermon on the Mount,

Jesus gave this advice to those who had gathered to hearhim speak. I think it is good advice no matter where you

stand on his divinity. In Matthew 5:25-26, Jesus said:

Settle matters quickly with your adversary who is

taking you to court. Do it while you are still together on

the way to court, for your adversary may hand you over to

the judge, and the judge may hand you over to the officer,

and you may be thrown into prison. Truly I tell you, you

will not get out until you have paid the last penny.


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Many think the only way to defend their rights as an

employee is to take their employer to court. If there is no

litigation, there will be no justice. They really feel it is

just that simple. You and I know, there is a middle way

and it is the better way. With solid reporting procedures in

your chain of command and policies that enforce

accountability, you can head expensive problems off

before they reach the courthouse. Alternate enforcement

routes allow employee and employer to meet in a privatesetting and solve ongoing disputes by availing themselves

of the remedies put in place to ensure that fair labor

practices are the norm in probate court.

You are called upon each day to deal with reasonable

people and unreasonable people. In all instances please be

reasonable and remember the golden rule is a steady

guide. I wish you well and please know I appreciate the

services you provide to our Alabama citizens.


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probate court labor relations speech

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