Good to Know

From employee discrimination issues to the business of medicine, from legal ramifications of the ubiquitous email to regulations on one of the state’s newest industries — all are key topics in the legal practices of six of the state’s top women lawyers. We selected our exemplary attorneys from the rankings calculated by Super Lawyers.

Here, we’ve asked the six to share insights from their practices that might prove valuable in many Alabama businesses.

Distributors ahead of brewers in Alabama torts

Melinda Sellers, of Burr & Forman in Birmingham, not only has a key practice area representing clients in the craft beer industry, she’s a certified cicerone, the counterpart of the wine sommelier in the beer world. While the craft beer industry may seem like a small niche, Alabama has seen a tremendous increase in breweries over the past few years. Beer laws have changed, and the demand for locally made products has increased. Burr & Forman, which has a long history of representing manufacturers, poised itself five years ago to be able to represent the influx of new brewers in the state.

“Alabama has gone from one to 33 licensed brewers over the past five years, ” Sellers says.

She represents beer producers and distributors in various legal matters, including setting up new breweries and creating proper distribution contracts. Alabama franchise law has specific guidelines when it comes to state alcohol distribution, limiting producers, for example, to one distributor, Sellers points out.

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Alabama law is especially protective of distributors because the distribution industry has a much longer history in the state than the alcohol production industry. “It doesn’t matter what the brewer and distributor agree to, Alabama law overrules it, so it’s critical to keep the law in mind when creating a distribution contract, ” she says.

As more of the larger western micro brewers, who distribute nationally, such as Sierra Nevada, establish breweries in the East to reduce the costs of distribution, Alabama is likely to become home to even more breweries, Sellers predicts.

“Interest in and consumption of craft beer just continues to grow across the nation, ” Sellers says. “We’re fortunate here in Alabama now to have so many excellent breweries.”
Sellers also represents businesses in the areas of condominium law and real estate law and other aspects of alcohol regulatory law.

Gaile Pugh Gratton, of Sirote & Permutt LLC in Birmingham, helps guide employers through the often complicated rules and regulations of employee disability law. The Americans with Disabilities Act, for example, requires employers to make certain reasonable accommodations for workers with health conditions that affect their productivity.

You be the one to bring it up first

Gaile Pugh Gratton, of Sirote & Permutt LLC in Birmingham, litigates employment claims, advising and defending employers. She counsels business managers to take a proactive stance against discrimination in the workplace by clearly establishing, communicating and implementing equal opportunity policies and procedures. She also conducts investigations of discrimination claims and employee misconduct, as well as labor audits. “It’s important to be proactive, because it establishes the employer will not tolerate discrimination. That helps avoid potential problems and can serve as an effective defense in the case of discrimination or harassment the employer did not know about and was not made aware of by the employee, ” Gratton says.

While many employers and human resource managers these days are generally aware of the potential for workplace discrimination and harassment when it comes to race and gender, and to some extent age, and have taken steps to avoid it, awareness of the potential for disability claims is lagging. That can create problems, Gratton says. In addition to guidelines requiring reasonable accommodations for disabled employees in the Americans with Disabilities Act, the Family and Medical Leave Act also addresses the need to accommodate employees with serious personal health conditions, including temporary disabilities. “Accommodating an employee with a short- or long-term disability is individualized and interactive, ” Gratton says.

Employees often are not aware they need to communicate their needs for reasonable accommodations to their employer and keep the dialogue open until a satisfactory solution is obtained. That’s a major reason why companies need to educate their employees about employees’ rights under the law and their responsibility for letting their employer know what challenges they are facing. “When an employer has policies and procedures about accommodations for disabilities and lets their employees know, it significantly reduces the chances for a misunderstanding. The employer is protected against an employee making claims about accommodations needed the employer didn’t know about, ” Gratton says.

A white-collar crime expert, Augusta Dowd, of White Arnold & Dowd PC in Birmingham, says many of her clients run afoul of the law because they were ignorant of today’s stricter regulations, especially in health care.

Doctors in a coded minefield

Augusta Dowd, of White Arnold & Dowd PC in Birmingham, specializes in white-collar crime defense, in addition to her diverse general litigation work. She says many of her white-collar crime clients don’t willfully intend to break the law but, instead, are ignorant of today’s stricter regulations and enforcement practices, especially in the health care field.

“A physician who has been practicing many years, for example, may have learned how to code procedures a certain way in his younger days and just hasn’t changed with the times, ” Dowd says. “For many physicians, the first indication they are not coding properly is a federal agent showing up at their office.”

The penalties for improperly coding procedures have also changed. What once might lead to a slap on the wrist can now be viewed as a crime. “With the rise of whistleblower cases, what begins as a civil case very often leads to a criminal case, ” Dowd says.

Doctors, especially those in small practices without a knowledgeable coding expert, can easily run into problems, because regulations are constantly changing. Dowd suggests such practices protect themselves by asking a coding consultant to take a look at office practices and suggest improvements.

“It’s very difficult to stay compliant in this area without expert advice, ” Dowd says.

Health care providers can also face legal issues if they have a business interest in another business beyond their own practice, such as a medical equipment supplier, where they may refer patients. “The referral is looked at as a kickback by regulators, ” Dowd says. “By contrast, there would be no problem if the medical equipment supply is under the same business umbrella as the practice.”

Ignorance of current federal regulations doesn’t constitute a defense. “I really feel sorry for these health care professionals who have no idea they are doing anything wrong, ” Dowd says. “We’ve got to do a better job of spreading the word about the potential for compliance problems in today’s regulatory environment.”

Think of emails as electronic versions of formal business letters, suggests Teresa Minor, of Balch & Bingham LLP in Birmingham. Everyday colloquial phrases may come back to haunt you and you could end up having to explain yourself on the witness stand.

Liabilities of the delete button

Teresa Minor, of Balch & Bingham LLP in Birmingham, practices in the areas of product liability and mass torts. Her best advice to business managers and all other professionals in today’s technology-rich environment is to view every piece of electronic communication, each email in particular, as seriously and soberly as if it were a formal business letter.

With that approach, there is much less chance for complications and embarrassment in case such communications are subpoenaed for litigation. “We have all become far too colloquial and casual in how we address each other electronically in the business environment, ” Minor says. “Any of our communications may come into play in a civil case, and if we are called in to be deposed, we’ll have to explain what we meant by the words we used.”

Such proceedings may become part of the public record and at the very least could embarrass us professionally if we’ve included casual off-color expressions, Minor warns. “It all seems so harmless and playful until those electronic communications come under legal scrutiny. I see it happen all the time. No one thinks it’s going to happen to them.”

A related issue is the importance of business managers correctly managing a company’s electronic communication, including alerting IT not to delete any files, if the communications are subpoenaed. Failing to properly collect and protect existing electronic communications can result in serious penalties for the manager responsible for them, as well as the company.

“Say IT automatically deletes emails that are over 90 days old, and the manager doesn’t stop that automatic process, the manager can be accused of spoliation of evidence, ” Minor says.

“When electronic communications are subpoenaed, it’s important to request and carefully follow your legal representative’s advice so you can protect yourself, ” Minor says.

The age of employees involved in a mass layoff needs to be considered carefully, says Alicia Haynes, of Haynes & Haynes PC in Birmingham, because juries often sympathize with older workers.

Photo by Art Meripol

Staff reduction math may equal age discrimination

Alicia Haynes, of Haynes & Haynes PC in Birmingham, represents plaintiffs in employment-related lawsuits, including sexual harassment and racial discrimination. She currently serves as first vice president of the National Employment Lawyers Association. Haynes says she has been seeing more age-discrimination cases in recent years, primarily because the economic downturn has led many companies to reduce costs by cutting staff.

While human resources managers typically understand that age discrimination is against the law, Haynes says, they sometimes try to circumvent legal requirements by blowing out of proportion a minor fault in an aging worker’s performance and firing them because of it. Or they may lay off older workers in disproportionate numbers.

“Juries tend to sympathize with the older worker, ” Haynes says.

Part of the problem is that companies don’t tend to take age discrimination as seriously as they do other forms of discrimination. “While nearly every employer trains its employees about how to avoid sexual harassment complaints, few employers train their employees on how to recognize age-based stereotypes and avoid them, ” Haynes says. “This lack of training can be a pit-fall for managers.”

Case in point — Haynes recently successfully argued Harris vs. CVS, “in which the evidence proved that CVS believed it was entitled to terminate Harris (an Anniston pharmacist) at age 65, ” she explains.

Haynes advises HR managers to play it smart by doing the right thing in how they handle older employees. “Stereotypes about older workers and the availability of retirement benefits can affect how managers rate employees for purposes of reduction, ” she says. “The numbers game of ‘How many workers need to be laid off to save X dollars?’ unfairly targets older, more senior, workers.

“I would urge employers to look to other models for reducing costs, such as rolling lay-offs or across-the-board reductions in hours, ” Haynes says. “These systems impact all workers equally, thereby avoiding claims of age discrimination, and ensure that, when the economy does turn around, the employer has a ready pool of trained workers to call upon to meet the increased demand.”

Marketing new drug treatments must be done carefully and without promoting off-label uses, according to Maibeth Porter, of Maynard, Cooper & Gale PC in Birmingham.

Docs and patients v. med makers

Maibeth Porter, of Maynard, Cooper & Gale PC in Birmingham, has a specialty in drug and medical device litigation, defending companies in personal injury cases involving vaccines, diet drugs, hormone replacement therapy, contraceptive devices, breast implants and more. Because Alabama has a large number of medical suppliers and manufacturers, such cases are not uncommon here.

“In past decades individuals would sue their doctors, but these days doctors are cooperating with their patients and the target is the manufacturer or supplier, ” Porter says.
Drug and medical device companies can better protect themselves from personal injury liability by carefully controlling how they promote their product, making sure to follow all federal laws and regulations. A company’s sales representatives must be carefully trained what to say and what not to say.

“Sales reps need to follow a script and not promote off-label uses, ” Porter says. “A doctor legally may prescribe a drug for an off-label use, but a rep legally can’t promote that.”

Warnings for potential problems developing because of a drug or device’s use must be clear and thorough based on the proper evaluation of clinical trials and the reporting of significant adverse reactions as recognized by the U.S. Food and Drug Administration (FDA).

The potential for additional significant adverse reactions must be recognized, monitored and reported by companies that want to avoid liability. Any adverse reactions reported to the company must be shared with the FDA, which then advises on needed label changes or additions.

The FDA only requires 5, 000 participants in a clinical trial, so it’s not unusual for a new drug or device to be associated with adverse events that didn’t appear during the trials, ” Porter says.

Kathy Hagood is a freelance writer for Business Alabama. She lives in Homewood.

Text by Kathy Hagood

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