Two Alabama papers interview Ed Still about Voting Rights Act
Since the U.S. Supreme Court decision in Northwest Austin Municipal Utility District Number One v. Holder on 22 June, both the Birmingham News and the Mobile Press Register have interviewed Ed Still about the impact of the decision and what should happen next.
In the Birmingham News, Still suggested more bailouts as the way to prove the law works only where there is still a problem.
Edward Still, a Birmingham lawyer with a specialty in voting rights cases, said Monday that communities in Alabama with few black voters and no history of discrimination should apply for the bailout. Doing so, he said, would negate the argument from Riley that the law unfairly punishes the entire South for the mistakes of just a few jurisdictions that have had voting procedures recently rejected by the Justice Department."It would be good for them and it would be good for the Justice Department," Still said.
The Mobile Press Register article centered on the idea that more Southern cities, towns, and counties should seek "bailout" -- a declaratory judgment that the jurisdiction is no longer subject to the preclearance requirements of Section 5 of the Voting Rights Act. Still warned that the Supreme Court decision should be taken as a warning:
If politicians don't address those concerns relatively quickly, some be lieve that the court will take a future opportunity to dump preclearance altogether."They're going to lower their sights and aim for the waterline rather than ahead of the ship," said Edward Still, a Birmingham voting rights attorney. Greater use of the bailout option could help head off such a showdown, he said.
GAO study shows appalling laxness in US Labor Department investigations of wage and hour complaints
The Government Accountability Office released a report on 25 March dealing with its investigation of the Wage and Hour Division of the Labor Department. The following is part of the summary of the report:
GAO found that WHD frequently responded inadequately to complaints, leaving low wage workers vulnerable to wage theft. Posing as fictitious complainants, GAO filed 10 common complaints with WHD district offices across the country. The undercover tests revealed sluggish response times, a poor complaint intake process, and failed conciliation attempts, among other problems. In one case, a WHD investigator lied about investigative work performed and did not investigate GAO’s fictitious complaint. At the end of the undercover tests, GAO was still waiting for WHD to begin investigating three cases—a delay of nearly 5, 4, and 2 months, respectively. ...
GAO identified 20 cases affecting at least 1,160 real employees whose employers were inadequately investigated. For example, GAO found cases where it took over a year for WHD to respond to a complaint, cases closed based on unverified information provided by the employer, and cases dropped when the employer did not return phone calls.
GAO’s overall assessment of the WHD complaint intake, conciliation, and investigation processes found an ineffective system that discourages wage theft complaints. With respect to conciliations, GAO found that WHD does not fully investigate these types of complaints or compel employers to pay. In addition, a WHD policy instructed many offices not to record unsuccessful conciliations in its database, making WHD appear better at resolving conciliations than it actually is. WHD’s investigations were frequently delayed by months or years, but once complaints were recorded in WHD’s database and assigned as a case to an investigator, they were often adequately investigated. --
Wage and Hour Division’s Complaint Intake and Investigative Processes Leave Low Wage Workers Vulnerable to Wage Theft
Edward Still and other voting rights attorneys file amicus brief in U.S. Supreme Court
A group of veteran voting-rights attorneys lead by Julius Chambers, former director-counsel of the NAACP Legal Defense Fund, has filed an amicus brief with the Supreme Court in Northwest Austin Municipal Unitily District v. Holder. The attorneys argue:
In comparison to Appellant’s limited familiarity with elections, attorney amici collectively have more than 200 years of experience litigating voting rights cases in covered and non-covered jurisdictions throughout the country. This experience has led amici to recognize the persistent need for timely enforcement capable of deterring illegal voting schemes before they are implemented—a task for which caseby- case litigation under Section 2 is ill-suited, but for which Section 5 was designed.Were Section 5 unavailable, there would be a significant increase in the number of discriminatory voting changes that voters and jurisdictions would be forced to address through litigation. But Section 2 cannot substitute for the prophylactic function of Section 5. In practice, amici have seen Section 2 and Section 5 operate in the complementary fashion that Congress intended. Where minority voters in covered jurisdictions cannot find a lawyer or afford to pay one, Section 5 provides the means to redress new violations of their rights. And where minority voters are able to get their day in court, Section 5 provides the assurance that their hard-won and expensive battles will not have been fought in vain if a jurisdiction repeats similar violations.
Too many discriminatory voting changes would remain unchallenged if Section 5 were invalidated. For individual minority voters, the cost and effort required to pursue Section 2 cases are great barriers to private enforcement, a problem made more acute by the small number of practitioners in covered jurisdictions who are willing and able to take such cases. This creates a perverse incentive—all too often realized—for officials to continue suspect practices because they know most voters cannot challenge them. In contrast, Section 5 serves as a deterrent to such practices.
Amici’s lengthy experience in the voting rights arena shows the importance of Congress’s considered decision to reauthorize Section 5. Without it, minority voters will fail to realize the full promise of the Voting Rights Act.
The amici include the following lawyers:James U. Blacksher, Armand Derfner, Anita Earls, Robert McDuff, Edward Still, and Ellis Turnage. The lawyers are represented by William D. Kissinger, Sujal J. Shah, Erin Shannon-Conroy, Perry M. Grossman, and Sarah L. Bishop of Bibgham McCutchen LLP.
Edward Still to speak at "Current Developments in Employment Law" program
ALI-ABA will be holding its annual program, "Current Developments in Employment Law," 23-25 July 2009 in Santa Fe, New Mexico. I will be on a panel each of the three days. I have attached a copy of the brochure for the program. If you practice employment law, I hope you will attend.
Wage Theft
When people ask me what kind of law I practice, one of the things I say is "wage and hour cases." That's way too nice a description. From now on, I will say, "I prosecute wage theft." If someone knocks you down and takes your purse or wallet, it's "robbery." If they break into your home or car and take something, it's "burglary." If Bernie Madoff takes your life savings, it's "fraud." They are all thefts of your money.
And if your employer does not pay the wages you are due -- and are owed according to the law -- then it is a theft of your wages. As Kim Bobo points out in "Wage Theft: Faces of a Hidden Crime, Part 1 of 3", wage theft is not paying the minimum wage, not paying for overtime, wrongly classifying an employee as a "contractor" so no benefits are paid (and usually no overtime), taking illegal deductions, and not paying employees at all.
While the production values on "Wage Theft" are low, the information is high quality. After you watch Part 1, go on and look at Part 2 (mainly about Interfaith Worker Justice) and Part 3 (in which there is a resolution of the problems presented in Part 1).
An excerpt from Kim Bobo's book, Wage Theft in America, is in In These Times. Ms. Bobo also has a blog called Wage Theft.
Interfaith Worker Justice has a great page of resources on wage theft.
Birmingham News quotes Edward Still on voting-rights controversy
The Birmingham News sought out Edward Still for his reaction to Gov. Bob Riley's recent amicus brief in a U.S. Supreme Court voting rights case. The News sets up the Governor's premise this way:
The section of the Voting Rights Act that requires Alabama to get federal approval for election-related changes is an unnecessary burden on a state that no longer needs supervision from Washington to ensure fair voting, Gov. Bob Riley contends in a brief filed with the U.S. Supreme Court.
Later in the article,
Birmingham lawyer Ed Still, an advocate of the Voting Rights Act, said Riley's submission to the justices doesn't address whether the extension of the law is constitutional."This is just part of a campaign that Riley has had for a while now - he and his attorneys general, trying to cripple the Voting Rights Act any way they could. This is a whine," Still said Tuesday. "I suspect this is the governor's way of providing some war stories to the conservative justices who want to strike down Section 5."
The whole article is here.
Contacting my office
Edward Still
Edward Still Law Firm, LLC
Suite 541
2112 11th Avenue South
Birmingham AL 35205-2844
phone 205-320-2882
fax 205-449-9752
Email to me: Please do not email anything confidential to me until I have agreed to take your case. If you don’t want your employer to know what you are telling me, never use your work email to write me. Email: [my last name]@votelaw.com.
Directions:
From Five Points South -- take the street to the right of the fountain and the Highlands Methodist Church (11th Ave.); at the next intersection, follow 11th Ave. slightly to the left; my office building is the second on the left.
From downtown Birmingham -- take 22nd St. going south; right on Magnolia Avenue (at Brother Bryan Park), left on 21st Place; my office building is at the top of the hill on the right.
From east of Birmingham on I-20 or I-59 -- in downtown Birmingham, take exit to US 280 East and follow the directions in the next paragraph.
From Red Mountain Expressway (US 280) in either direction -- take the University Blvd/8th Ave. South exit; turn right at the bottom of the ramp; left on 22nd St.; right on Magnolia Avenue (at Brother Bryan Park), left on 21st Place; my office building is at the top of the hill on the right.
From Tuscaloosa on I-20/59 -- take the I-65 South exit and follow the directions in the next paragraph.
From I-65 South -- take the 4th Ave. S. exit; right onto 22nd St.; right on Magnolia Avenue (at Brother Bryan Park), left on 21st Place; my office building is at the top of the hill on the right.
From I-65 North -- take the University Blvd. exit; right onto 22nd St.; right on Magnolia Avenue (at Brother Bryan Park), left on 21st Place; my office building is at the top of the hill on the right.
Parking is available on the top level of three levels, accessible from 21st Place or 11th Avenue. If there is no parking available there, go to the open air parking lot just down the hill and across 21st Place.
Bill to patch some problems in USERRA has been introduced
On January 15th, Sens. Robert Casey and Edward Kennedy introduced the Servicemembers Access to Justice Act of 2009 (S. 263) ("SAJA") to clarify and strengthen USERRA. Sen. Barack Obama co-sponsored a substantially identical measure last year. You can track the bill on the govtrack.us website.
Among amendments to USERRA that SAJA would make are the following: (1) a federal-funding hook to trump states’ 11th Amendment immunity; (2) clarification that USERRA prohibits wage discrimination; (3) prohibition of mandatory arbitration; (4) clarification that Section 4302 of the Act applies to both substantive and procedural rights; (5) revamping of the liquidated damages provision by removing the requirement that willfulness be shown and, instead, requiring that liquidated damages be awarded (with a mandatory minimum of $10,000) in all cases in which a violation is found, unless the employer can prove good faith; (6) provision for liquidated damages for federal employees (there is none currently); (7) establishment of a right to a jury trial in cases against private, state, and local government employers (regardless of the type of relief sought); (8) provision for awards of punitive damages in cases where an employer acted with malice or reckless indifference to the plaintiff’s rights; (9) mandatory awards of attorney’s fees to prevailing plaintiffs (currently discretionary); and (10) clarification that a merger or transfer of assets is not necessary to impose successor liability (this would override the 11th Circuit's holding to the contrary in Coffman v. Chugach Support Services, Inc., 411 F.3d 1231, 1237 (11th Cir. 2005)); and (11) strengthening of the Act's injunction provision by providing that denials of reemployment and discharges "shall constitute irreparable harm." (This summary was written by my co-author Kathryn Piscitelli.)
A good place for reservists and guard members to work
Marketplace, the public radio business/economy program reported today on an employer that not only does not hassle those in the military, but recruits and supports them. If we had more employers like Atkins and Pearce and fewer like the ones "60 Minutes" reported on, we would not have as much need for USERRA as we do. The Marketplace story can be read or listened to at Marketplace: Service members find work in business.
Wolff v. Fluker contest, first two days
The Mobile Press-Register has an article in the 24 Dec. 2008 edition concerning the first two days of hearings in the election contest brought by Pete Wolff III against incumbent Evergreen Mayor Larry Fluker. You may view the article here. I represent Mayor Fluker in this action.
CBS' 60 Minutes reports on "Reservists' Rocky Return to Job Market"
To read or watch the whole story, "Reservists' Rocky Return To Job Market, 60 Minutes Report Also Examines Costs Borne By Employers Of Deployed Citizen Soldiers," just click on the link.
Edward Still and Brenda Wright interviewed about election law
Description: Voter fraud, faulty equipment, voter purges, 3rd party registration problems-These are just some of the issues plaguing elections past and present. Law.com blogger and host, J. Craig Williams welcome experts, Attorney Brenda Wright, Legal Director of Demos, and Attorney Edward Still a Birmingham lawyer who specializes in voting law and founder of the blog, Votelaw.com. They will discuss legal issues surrounding voter’s rights, voter fraud, election litigation and what can and can't be done to recruit voters. -- LegalTalkNetwork, MP3 Link, and WMA Link.
Riley v. Plump: the Supreme Court dismisses Governor's appeal
On the first day of the October 2008 Term of the U.S. Supreme Court, the Court dismissed Governor Riley's appeal. We had argued in our Motion to Dismiss or Affirm that the Governor's appeals had been filed outside the legal time limits.
Riley v. Plump: supplemental brief filed
My co-counsel and I filed a supplemantal brief in Riley v. Plump, No. 07-1460 in the U.S. Supreme Court, yesterday to bring to the Court's attention the recent developments in the case, including the preclearance of the new law setting a November election to fill the vacancy on the Jefferson County Commission. We argue that these developments moot the Governor's appeal.
Birmingham News article on proposed sewer referendum quotes Ed Still
The Birmingham News has published an article quoting Edward Still on the legality of holding an advisory referendum on the sewer bond crisis. Jefferson County Probate Judge Alan King has asked the state attorney general if it is legal to hold an advisory referendum.
The Birmingham News called Ed Still and asked his opinion.
Ed Still, a Birmingham lawyer who specializes in voting law, said Jefferson County's advisory vote "should not go forward unless they make sure it's legal to hold this referendum.""Absent some odd decision from a court, I think the county is just foreclosed from holding this referendum. Somebody will bring a lawsuit," he said.
Some voters may also be confused about the complexity of the questions, Still said.
"There are some questions in there that looks like graduate school work to me," he said. "It uses words that are not in the vocabulary of everyday people."
Are you prepared to vote?
Your vote can impact the quality of your schools, access to affordable housing, employment opportunities, and the availability of quality healthcare.
The Prepared to Vote campaign is a non-partisan voter education initiative that will help voters protect their rights by arming them with the information they need to navigate the electoral process, identify instances when their voting rights are violated, and fight to remedy problems before their voting rights are denied.
Click here for information on
* When, where and how to register to vote;
* Important voting deadlines;
* How to verify your voter registration and poll location;
* What to do if you have moved;
* How to vote absentee;
* What to expect on Election Day, and
* Your rights as a voter.
Wage and Hour
If you are interested in consulting with me about your wage and hour situation, please contact my office.
Federal law requires that most employees be paid a minimum wage of $6.55 per hour (as of 24 July 2008) and be paid 150% of the regular wage (which may be more than the minimum wage) for each hour over 40 in a work week. There are many exceptions to both parts of that statement. Here are some typical violations:
Minimum wage:
Deductions -- An employer may not deduct the cost of required uniforms from the worker’s pay, if that would reduce the worker’s pay below the minimum wage for any work week.
Cash shortages -- An employer cannot deduct cash shortages from the worker’s wages, if that would reduce the worker’s pay below the minimum wage for any work week.
Tips -- Tipped employees may be paid 50% of the minimum wage only if the amount of the worker’s total income does not go below the minimum wage for a particular work week. (To be considered a “tipped employee,” the individual worker must usually receive more than $30 per month in tips.)
Commissions -- Commission employees must be paid at least the minimum wage each work week. Recently, the U.S. Labor Department sued a company that was paying its commission employees on a monthly basis, without making sure they were receiving at least minimum wage for each week.
No time records -- If the employer keeps no time records at all, there may be a violation of the minimum wage law.
Overtime pay:
Generally -- A worker working more than 40 hours in a work week must be paid 1-1/2 times the regular rate for each hour over 40.
Working through lunch -- If you work through lunch, you should be paid for the time. You must get at least 30 minutes of time with no work duties – time that you can spend as you want to – or the employer must pay you.
Comp time -- Public employers are allowed to use a “comp time” system so that excess hours in one week are compensated by time off in a later week. The time off must be 1-1/2 times the amount of overtime. Private employers must pay overtime and may not use “comp time.”
Work at home -- If the employer requires the employee to do work before leaving home or after returning home, the employer must pay for this time. An example: a service worker has to call into work to get the first assignment of the day and must drive from home to that first assignment. The time spent getting the assignment and getting to the customer’s location may be time for which the worker should be paid.
Salaried employees -- Even if the employer says that an employee is “salaried,” the worker may be entitled to overtime pay in certain situations. To be exempt from the overtime rule, the employee must be paid at least $455 per week and have duties that qualify the worker as an executive, manager, administrative employee, or professional. These exceptions usually apply if the worker
• is directly related to the management of his or her employer's business, or
• is directly related to the general business operations of his or her employer or the employer's clients, or
• requires specialized academic training for entry into a professional field, or
• is in the computer field, or
• is making sales away from his or her employer's place of business, or
• is in a recognized field of artistic or creative endeavor.
Prohibiting overtime -- An announcement by the employer that no overtime work will be permitted, or that overtime work will not be paid for unless authorized in advance, will not impair the worker’s right to compensation for the overtime hours that are worked.
Cash payments -- Some employers pay for overtime hours “off the books” by making the payment in cash without reporting the hours on the pay check. This may be a violation of the overtime law.
For more information on overtime law, go to Workplace Fairness (this will open in a new window, so that you can easily return here; you will also have to agree to the terms of use before the page is displayed).
Discrimination
"Society as a whole benefits immeasurably from a climate in which all persons, regardless of race or gender, may have the opportunity to earn respect, responsibility, advancement and remuneration based on ability." -- Justice Sandra Day O'Connor
My employment law cases are on the Case List page. The Case List page does not list many case which were settled or on which a judge did not write an opinion.
The Workplace Fairness website contains a wealth of information about your rights as an employee. It is provided by the National Employment Lawyers Association, of which I am a member.
Federal law prohibits an employer from discriminating against employees or applicants for employment on the basis of race, sex, religion, age, or handicap. Most of these laws apply only to employers with more than 15 employees, but there are exceptions.
If you have questions about these discrimination laws and how they apply to your situation, please call me office to set up a consultation.
COBRA -- continuation of health insurance
"COBRA" stands for the Consolidated Omnibus Budget Reconciliation Act. Part of the Act required employers of 20 or more employees to offer a continuation of health insurance for employees and their families when some event (termination of employment, divorce, etc.) would otherwise cut off the coverage.
For more information on COBRA, I suggest you go to the Workplace Fairness site (this will open in a new window, so that you can easily return here; you will also have to agree to the site's terms of use before the COBRA page is displayed).
Non-competition agreements
Non-competition agreements are contracts between employers and employees (or sometimes between former partners) that the employee will not compete with the employer after the employment ends. Because these agreements restrain the freedom of the employee to seek other work, Alabama law restricts the use of these agreements. Suits under non-compete agreements are usually brought against the former employee and the new employer. Courts will review such agreements for reasonableness of the time and region covered by the non-competition agreement.
For more information on non-competition agreements, please see the following:
The general rule on non-compete agreements
Exception for professional firms
What is a protectible interest?
What is a reasonable restriction as to time and place?
When do restrictions pose an undue hardship on the worker?
Rules for preliminary injuctions
Does the non-compete agreement continue if the company is sold?
Alabama law also provides protection against the misuse of a company's trade secrets by its former employees or competitors. Companies sometimes bring claims under the Trade Secrets Act when the employee has not signed a non-competition agreement or a court has held the agreement invalid.
I will be happy to discuss non-competition agreements or trade secrets problems with
* companies wishing to use them
* companies hiring employees who are subject to such agreements,or
* employees who are subject to them.
My employment law cases are on the Case List page. The Case List page does not list many case which were settled or on which a judge did not write an opinion.
