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Thursday, September 29, 2016

DOL Releases Final Rule on Paid Sick Leave for Employees of Federal Contractors




By Thomas Eden

The U.S. Department of Labor announced Thursday its Final Rule implementing Executive Order 13706, Establishing Paid Sick Leave for Federal Contractors. Here are the highlights from the DOL’s Fact Sheet:

*Covered contractors are “nearly identical” to those contractors covered by the minimum wage requirements for federal contractors, but this Rule also covers employees who are exempt from the minimum wage and overtime requirements of the Fair Labor Standards Act. The Sick Leave rule also applies to “certain contracts with the U.S. Postal Service.”

*The paid sick leave requirements will become effective in new solicitations or contracts awarded after January 1, 2017.

*Employees who work on or in connection with a covered contract must accrue 1 hour of paid sick leave for every 30 hours worked.

*“If a [collective bargaining agreement] ratified before September 30, 2016 applies to an employee’s work performed on or in connection with a covered contract, and the CBA provides the employee with at least 56 hours (or 7 days) of paid sick time (or paid time off that may be used for reasons related to sickness or healthcare) each year, the . . . Rule will not apply to the employee until the date the agreement terminates or January 1, 2020, whichever is first.”

*Paid sick leave may be substituted for or run concurrently with unpaid leave under the Family and Medical Leave Act.

*A contractor’s existing paid time off policy can fulfill the paid sick leave requirements as long as employees have the same rights and benefits required by the Final Rule.

Common Sense Counsel: The cost of doing business with the Federal Government just went up! Stay tuned for more information and a Constangy webinar date! My Partner Cara Crotty is reviewing the Final Rule and will publish a Constangy Affirmative Action Alert with more details shortly.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. Some quotes contained in the column were taken from a Constangy Blog Post by his law Partner Cara Crotty. Tommy can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com. Contact his legal assistant Christina Johnson cjohnson@constangy.com if you wish to be placed on the free Constangy update list.


Friday, September 23, 2016

How to Make the EEOC Love You


By Thomas Eden

Employers, imagine that a retaliation charge has been filed against your company. What can you do to make the Equal Employment Opportunity Commission (EEOC) investigator love you (and go away)? In early September, the EEOC issued its final Enforcement Guidance on Retaliation and Related Issues, accompanied by a Q&A, and a Small Business Fact Sheet.

HERE THE SIX WAYS TO MAKE THE EEOC INVESTIGATOR LOVE YOU (Retaliation Edition):

Have a written no-retaliation policy, in plain language that your least-educated employee can understand. Provide realistic examples. Tell employees where and how to report alleged retaliation. In the management version, provide a hotline and other help for managers and supervisors who have to supervise an employee who has engaged in protected activity.

Go through your other employment policies, and revise or scrap any that seem to threaten employees who engage in certain types of protected activity. For instance, if you have a policy that prohibits employees from talking about their pay, ditch it. The EEOC says a policy like that is retaliatory, and if you’re a federal contractor such a policy will also get you in trouble with the Office of Federal Contract Compliance Programs. Other federal agencies hate those policies, too, including the National Labor Relations Board.

Include retaliation in your regular EEO training for employees and supervisors. Again, employees need to understand that retaliation is against the law, and they need to know where and how to report it. You can always video record the training for employees in remote locations. Supervisors and managers accused in a charge need to take to hear the EEOC advice: “Emphasize that those accused of EEO violations . . . should not act on feelings of revenge or retribution, although also acknowledge that those emotions may occur.”  You have to love the way that the EEOC separates actions from emotions.

If a current employee files a charge (or engages in other protected activity), talk with the employee’s supervisors and managers as soon as possible, and remind them of the laws and company policy against retaliation. If they directly supervise the employee who filed the charge, come up with a plan that will allow them to keep their personal feelings under control and continue constructively managing that employee. 

Follow up periodically with everyone involved in a charge (or other protected activity) to ensure that no retaliation is occurring. “Everyone” would include the individual who filed the charge, as well as his direct supervisor and the people in his chain of command. If you have employees who are witnesses in connection with the charge, check in with them, too. If you find out that there is actual or perceived retaliation, you need to address it immediately. 

If action has to be taken against an employee who has filed a charge or engaged in other protected activity (“sacred cow” employee), review it carefully in advance, in consultation with your employment attorney. Even a seemingly slight downgrade in a performance rating could be considered retaliatory if it results in a smaller pay increase or makes the employee ineligible for promotion.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. This column is taken from a Constangy Blog Post by his law Partner Robin Shea. Tommy can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com with link to full case. 

Thursday, September 15, 2016

Final FMCSA Clearinghouse Regulation Release Imminent

By Thomas Eden

On May 20, the Federal Motor Carrier Safety Administration (FMCSA) sent to the White House Office of Management and Budget (OMB) its final rule that would establish a national database of truck drivers who have failed or refused to take drug and alcohol tests. Submission to the OMB if the final step in the approval process. The proposed drug and alcohol clearinghouse rule, originally published as a proposed rule February 12, 2014 would require motor carriers and other medical personnel to “report verified positive, adulterated and substituted drug test results, positive alcohol test results, test refusals, negative return-to-duty test results and information on follow-up testing.” The DOT recently updated to the definition of “Service Agent” under 49 CFR Part 40.3 in preparation for the final release.

FMCSA Employers will be mandate to search the clearinghouse for positive drug and alcohol test results, and refusals to test, on an annual basis for current employees and as part of the pre-employment process for prospective employees. Those same employers will also be mandated to upload positive result and refusals into the clearinghouse. Currently, employers must rely on information provided by the driver, and mandated contact the prior DOT employers, who might not disclose prior positive drug or alcohol test results, or refusals to test. That system is hit or miss at the best.

On September 14, 2016, at a conference of the Substance Abuse Program Administrators (SAPAA), the largest association representing in house drug and alcohol program administers, the Program Director for the Federal Motor Carrier Safety Administration (FMCSA), Juan Moya, announced that the final FMCSA Clearing House Regulation would be released shorty, but before the end of October 2016.

Common Sense Counsel: After the final clearinghouse regulations are issued employers will need to update their FMCSA policy, Forms toolkits, adopt various internal reporting and confidentiality protocols, conduct training and modify their Service Agent contracts.  This Proposed Regulation will touch every CDL holder and their employers and is the most significant regulatory change since 2001 when 49 CFR Part40 Regulations were adopted.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith and Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors, and as Legal Counsel, to the Substance Abuse Program Administrators Association. Tommy can be contacted at teden@constangy.com or 334-246-2901. Tommy drafts DOT and State Specific Drug Free Workplace Polices for Constangy clients nationwide and will be presenting a Constangy webinar on this topic after the final regulation release.


Friday, September 9, 2016

Cat’s Paw Leaves Employer Burned

By: Thomas Eden 

Andrea Vasquez, an emergency medical technician working for Empress Ambulance Service, Inc.  ("Empress"), was subjected to on the job unwanted sexual overtures by another Empress employee, a dispatcher. Vasquez promptly complained of her co-worker’s conduct and was assured by   supervisors that her complaint would be investigated.  The supervisor asked her to put her complaint in writing, and she obliged, but while she was doing it, the dispatcher walked by and figured out what was going on. First he went to a male co-worker and asked the co-worker to lie for him. The co-worker refused. Then the dispatcher printed out a bunch of fake text messages indicating that Vasquez was coming on to him and turned his “evidence” into the supervisor. Empress credited the false documents manufactured by the dispatcher that purported to show Vasquez's eager agreement to a sexual relationship, but refused to consider further contradictory evidence from Vasquez. One of the messages displayed a “racy photo” that Vasquez supposedly sent the dispatcher, though the photo did not contain Vasquez’s face.  In reliance on these doctored photos and text messages, Empress fired Vasquez. 

Vasquez subsequently filed suit in the Southern District of New York, alleging that Empress had retaliated against her in violation of Title VII and New York State Human Rights Law.  The United States District Judge dismissed her case, holding that the retaliatory intent of Vasquez's co-worker, a low-level employee, could not be imputed to Empress and that Empress consequently could not have engaged in retaliation. However, last week the Second Court of Appeals based in NY overturned the dismissal finding that agency principles permit the retaliatory intent of Vasquez's co-worker to be imputed, as a result of Empress's shoddy and negligent harassment investigation.

Jean de La Fontaine in 1679 authored a fable, entitled the “Monkey and the Cat”. According to the fable, a mischievous monkey lured an unsuspecting cat to fetch chestnuts from a burning hearth under the guise that they will share the chestnuts. In the end the monkey stole the chestnuts, leaving the cat with nothing but burnt paws. In referencing the fable, the Second Circuit Panel stated, “The employer plays the credulous cat to the malevolent monkey and, in doing so, allows itself to get burned – i.e., successfully sued”. The Second Circuit held that an employer exposes itself to liability where it automatically credits one employee’s accusations over another, refuses to consider contrary evidence easily ascertained and does a shoddy investigation.

Common Sense Counsel: Employers should beware of being too quick to believe an employee who accuses a co-worker of wrongdoing. If the accuser has an illegal motive (such as discrimination or retaliation) and if the employer is “negligent” in investigating before taking action against the co-worker, then the employer could be legally responsible and left with burnt paws.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. Some quotes contained in the column were taken from a Constangy Blog Post by his law Partner Robin Shea. Tommy can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com with link to full case.



Thursday, September 8, 2016

OSHA Colors in Post-Accident Drug Testing Expectations

By: Thomas Eden
The Occupational Safety and Health Administration (OSHA) on August 19 filed its memorandum brief in opposition to attempts by several groups of builders who wish an enjoin OSHA’s new post-accident drug testing reporting rule. They claim that the OSHA measure is an overreach of the agency's authority. OSHA's new enforcement mechanism under §1904.35(b)(1)(iv) prohibits employers from retaliating against employees who report accidents with OSHA’s stated goal that work related accidents may be more accurately reported. OSHA’s preamble to the new rule takes the position that blanket post-accident testing would be found to be retaliatory and a violation. The case is Texo ABC/AGC Inc. et al. v.Perez et al., in the U.S. District Court for the Northern District of Texas.

OSHA’s brief makes a strong case that its preamble statements about post-accident drug testing does not rise to a “rule” which may not be enjoined, that the regulation only concerns accurate reporting within its Congressional mandate and the Plaintiff’s petition is “meritless.” But more revealing to employers and drug testing professionals should be OSHA’s top 10 quotes contained in its brief where the Agency colors in the lines for employers who wish to continue post-accident drug testing and avoid a citation after November 1, 2016. Read OSHA’s quotes and you be the judge:

1. “the Rule requires employers to “establish a reasonable procedure for employees to report work- related injuries and illnesses promptly and accurately,” and provides that “[a] procedure is not reasonable if it would deter or discourage a reasonable employee from accurate reporting” (Page 5)

2. “the preamble acknowledges that OSHA will have to proceed case by case; that certain events are to be evaluated on a case-by-case basis; enforcing the Rule to apply those principles in the case-by-case manner envisioned by the preamble” (Pages 16 & 18)

3. “carefully evaluate the effect of particular incentive programs and drug-testing policies,

4. “employer may “defend by showing that it possessed a legitimate, non-discriminatory reason for taking the adverse actions”. (Page 16 fn)

5. “the preamble does not lay out any categorical rules to determine when drug use “is likely to have contributed” to an injury, or what kind of drug testing is “designed in a way that may be perceived as punitive or embarrassing.” (page 18)

6. “Model Plan for a Comprehensive Drug-Free Workplace Program, at 3. The Drug-Free Workplace Advisor website similarly encouraged employers “to establish objective criteria that will trigger a post-accident test.” Ex. 1, at 4 (terminated in 2010). These statements are consistent with the preamble and inconsistent with the blanket post-injury drug testing Plaintiffs appear to advocate.” (Page 22 fn 19)

7. “the Rule permits any drug tests that are authorized or mandated by state or federal law.” Page 22 fn 20)

8. “Wherever the Rule conflicts with a workers’ compensation law, the compensation law controls; Rule must comply with Section 4(b)(4), and so cannot be applied to “supersede” or “affect” worker’s compensation laws. 29 U.S.C. § 653(b)(4). That statement necessarily refers to all of Section 4(b)(4), including its language that the OSH Act does not “enlarge or diminish” the “rights, duties, or liabilities of employers and employees.” Id. Thus, if a state workers’ compensation law provides an employer the “right[]” to conduct a certain drug test, the Rule does not say otherwise.” (Page 23)

9. “This is a fact-specific inquiry that will need to be resolved on a case-by-case basis. (Page 33 fn 30)

10. “preamble simply encourages employers to use testing that can “contribut[e] to the employer’s understanding of why the injury occurred.” (Page 33 fn 31)

11. “preamble simply encourages employers to use testing that can “contribut[e] to the employer’s understanding of why the injury occurred.” (Page 33 fn 31)

Constangy’s 6 Common Sense Steps to Eliminate Employer Confusion

In light of the above positions taken by OSHA Final Regulations, we recommend the following: 

1. Adopt a DFWP policy, in accordance with the State Laws, in order to reduce insurance premiums is not retaliatory and therefore seems permissible under §1904.35(b)(1)(iv), even though employers are not literally required by state or federal law or regulation to implement drug-free workplaces. Because the motivation to take advantage of state DFWP statutes is to reduce insurance premiums or disqualification of workers’ compensation claims for statutory violations, such policies are likely to be viewed by OSHA as compliant. Having the State Agency, or attorney, written certification is highly recommended. Well Drafted BEST Practices DFWP Guidance:

Should meet State DFWP Laws and be customized for your business
Should cover WC and UC Disqualifications  
Should deal with Medical and Recreational Marijuana Issues 
Should handle pre-duty prescription medication disclosure under the ADA 
Should cover this new OSHA guidance 
Should be easy to read and understand by employees and supervisors
Should include all required pre-employment and active employee signoff forms, checklists, notices and specimen documents (last chance agreement).

2. Making sure you are following the DFWP Act language in drafting your policy is more critical than ever (also highly recommended for winning UC and WC disqualification cases), and make sure to include drug testing as part of your “safety policy.” 

3. Including Disqualification for a Post-Accident Positive or Refusal language under the States’ Workers Compensation in your DFWP is a wise step to be able to show testing for a lawful and permissible purpose – reduction of workers’ compensation cost and encourage an unimpaired drug free workforce. Under Section 4 of the OSH Act employer rights concerning Workers Compensation are outside of OSHA’s jurisdiction as OSHA acknowledged.

4. For those employers who are simply accepting an insurance carrier’s premium discount offer that includes mandated post-accident drug testing for reportable injuries, or required to be part of a self-insured workers’ compensation fund, in the absence of a State certified DFWP statute, the arrangement requiring post-accident testing should be captured in writing.

5. Adopt a customized confidential post incident/accident report form that captures:


The how, when, who and why of the incident/accident 
Did the employee’s action, or in-action, contribute to the incident/accident, or cannot be                       completely discounted as a contributing factor? 
Include in checklist” Triggers” matching your new post incident/accident testing circumstances           or events
Include in your checklist dual supervisor sign-offs
Completed form is evidence of legitimate, non-discriminatory reason for the adverse action; i.e.          post-accident drug test. 

6. Train supervisors, safety, HR and line managers on:

Your new Post incident/accident drug testing criteria
How to utilize your new Post incident/accident drug testing report
Train your Drug Testing TPA, Occupational Physicians’ offices, post-accident clinics not to                 conduct blanket post-accident test, but to ask if the report has been completed as part of their               authorization to conduct post-accident testing
Train supervisors on reasonable suspicion testing and reasonable possibility testing and provide           them checklist for both
Train HR and supervisors on the use of last chance agreements as a risk reduction                                 strategy.

Employers who follow this common sense counsel should be able to continue most post-accident drug tests under OSHA’s new “Reasonable Reporting Procedure” Rule. 

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors SAPAA. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com with link to Brief

















Friday, September 2, 2016

Shoddy Harassment Investigation Bites Employer

By: Thomas Eden

An employee has accused her boss of sexual harassment. It’s her word against his, but you might be able to find out the truth if you interview her co-workers. The only trouble with that is, you don’t want to do anything to undermine the supervisor before you even know whether he’s guilty. So, maybe you do a superficial investigation that doesn’t require you to dig into the dirt, or maybe you don’t do any investigation at all.

If you ever needed a case study showing why it’s important to do a thorough investigation anyway then read the story of EMMA GYULAKIAN vs. LEXUS OF WATERTOWN, MA. In that case, the Massachusetts Supreme Court reinstated a punitive damages award of $500,000 against a Lexus dealership, in part because of its lousy investigation.

Gyulakian was in her termination meeting and made allegations of sexual harassment by her boss. The dealership went ahead with the termination and then investigated. But just barely, because they didn’t want to “undermine” the accused supervisor. The “investigation” in Gyulakian’s department consisted of checking to see whether any accusations had been made against her boss in the past. The answer was no. End of investigation.

Then at the trial, all of the co-workers who were not interviewed were called to testify. One said that the boss spoke crudely about the plaintiff and to the co-worker herself. Another co-worker said that the boss had spoken about Gyulakian’s breasts. The boss’s former boss testified that the boss talked about employees’ breasts and buttocks and spoke in a way that “would not have been acceptable at ‘church or temple.'” A former employee said that the boss used “vulgar profanity” when talking about women, including female employees.

Although the dealership wanted to use its investigation as a defense to the punitive damages claim, the Court concluded that that the shoddy investigation wasn’t designed to get at the truth. Therefore, the jury was justified in hitting the dealership for half a million in punitive damages.

Common Sense Counsel: Here’s a tactful way to get to the truth. Consider meeting with the employees individually and, without naming names, simply asking them about the atmosphere and general work environment. At some point in the conversation, you can review the harassment policy with them and ask whether they’ve observed any behavior that they think is inappropriate or might violate the policy. If they give you specifics, then you can follow up as needed. It’s also a good idea to ask them whether they know what to do if they feel they’ve been harassed at work.

There is simply no substitute for a legally complaint anti-harassment policy, written investigation guidelines notebook, coupled with employee anti-harassment training. Shoddy work always comes back to bite you.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. This column is taken from a Constangy Blog Post by his law Partner Robin Shea. Tommy can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com with link to full case. 

Friday, August 26, 2016

OSHA Colors in Post-Accident Drug Testing Expectations


By: Thomas Eden

The Occupational Safety and Health Administration (OSHA) on August 19 filed its memorandum brief in opposition to attempts by several groups of builders who wish an enjoin OSHA’s new post-accident drug testing reporting rule. They claim that the OSHA measure is an overreach of the agency's authority. OSHA's new enforcement mechanism under §1904.35(b)(1)(iv) prohibits employers from retaliating against employees who report accidents with OSHA’s stated goal that work related accidents may be more accurately reported. OSHA’s preamble to the new rule takes the position that blanket post-accident testing would be found to be retaliatory and a violation. The case is Texo ABC/AGC Inc. et al. v.Perez et al., in the U.S. District Court for the Northern District of Texas.

OSHA’s brief makes a strong case that its preamble statements about post-accident drug testing does not rise to a “rule” which may not be enjoined, that the regulation only concerns accurate reporting within its Congressional mandate and the Plaintiff’s petition is “meritless.” But more revealing to employers and drug testing professionals should be OSHA’s top 10 quotes contained in its brief where the Agency colors in the lines for employers who wish to continue post-accident drug testing and avoid a citation after November 1, 2016. Read OSHA’s quotes and you be the judge:

1. “the Rule requires employers to “establish a reasonable procedure for employees to report work- related injuries and illnesses promptly and accurately,” and provides that “[a] procedure is not reasonable if it would deter or discourage a reasonable employee from accurate reporting” (Page 5)

2. “the preamble acknowledges that OSHA will have to proceed case by case; that certain events are to be evaluated on a case-by-case basis; enforcing the Rule to apply those principles in the case-by-case manner envisioned by the preamble” (Pages 16 & 18)

3. “carefully evaluate the effect of particular incentive programs and drug-testing policies,

4. “employer may “defend by showing that it possessed a legitimate, non-discriminatory reason for taking the adverse actions”. (Page 16 fn)

5. “the preamble does not lay out any categorical rules to determine when drug use “is likely to have contributed” to an injury, or what kind of drug testing is “designed in a way that may be perceived as punitive or embarrassing.” (page 18)

6. “Model Plan for a Comprehensive Drug-Free Workplace Program, at 3. The Drug-Free Workplace Advisor website similarly encouraged employers “to establish objective criteria that will trigger a post-accident test.” Ex. 1, at 4 (terminated in 2010). These statements are consistent with the preamble and inconsistent with the blanket post-injury drug testing Plaintiffs appear to advocate.” (Page 22 fn 19)

7. “the Rule permits any drug tests that are authorized or mandated by state or federal law.” Page 22 fn 20)

8. “Wherever the Rule conflicts with a workers’ compensation law, the compensation law controls; Rule must comply with Section 4(b)(4), and so cannot be applied to “supersede” or “affect” worker’s compensation laws. 29 U.S.C. § 653(b)(4). That statement necessarily refers to all of Section 4(b)(4), including its language that the OSH Act does not “enlarge or diminish” the “rights, duties, or liabilities of employers and employees.” Id. Thus, if a state workers’ compensation law provides an employer the “right[]” to conduct a certain drug test, the Rule does not say otherwise.” (Page 23)

9. “This is a fact-specific inquiry that will need to be resolved on a case-by-case basis. (Page 33 fn 30)

10. “preamble simply encourages employers to use testing that can “contribut[e] to the employer’s understanding of why the injury occurred.” (Page 33 fn 31)

11. “preamble simply encourages employers to use testing that can “contribut[e] to the employer’s understanding of why the injury occurred.” (Page 33 fn 31)

Common Sense Counsel: To learn the 6 Common Sense Steps to Eliminate Employer Confusion over this issue and continue post-accident drug testing after November 1, 2016, attend the local SHRM Chapter breakfast briefing on this topic on September 2. To Register:   https://www.eventbrite.com/e/dont-panic-post-accident-drug-test-tickets-27098967742 


Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com