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Friday, December 15, 2017

Santa’s NLRB Early Christmas for Employers



An NLRB judge ruled that Hy-Brand Industrial Contractors, Ltd. (Hy-Brand) and Brandt Construction Co. (Brandt) were collectively joint employers and/or a single employer for purposes of the National Labor Relations Act (NLRA). Five Hy-Brand employees and two Brandt employees were discharged after they engaged in work stoppages based on concerns involving wages, benefits, and workplace safety. The work stoppages were found by an administrative law judge to constitute protected concerted activity under Section 7 of the National Labor Relations Act, and the discharges constituted unlawful interference with the exercise of protected rights in violation of Section 8(a)(1) of the Act.

On December 14, 2017, a very divided panel of the National Labor Relations Board agreed with the judge that Hy-Brand and Brandt are joint employers, but disagreed with the legal standard the judge applied to reach that finding. The judge applied the standard adopted by an Obama era Board majority in Browning-Ferris Industries of California, Inc.

In Browning-Ferris, Obama appointed Board majority had held that, even when two entities have never exercised joint control over essential terms and conditions of employment, and even when any joint control is not “direct and immediate,” the two entities will still be joint employers based on the mere existence of “reserved” joint control, or based on indirect control or control that is “limited and routine.”

The Trump appointed NLRB found that the Browning-Ferris standard is a distortion of common law as interpreted by the Board and the courts, is contrary to the Act, it is ill-advised as a matter of policy, and its application would prevent the Board from discharging one of its primary responsibilities under the Act, which is to foster stability in labor-management relations. Accordingly, the Trump appointed NLRB overruled Browning-Ferris and returned to the principles governing joint-employer status that existed prior to that decision.

Link to: Hy-Brand Order

Common Sense Counsel: every employer who uses staffing company employees and every franchisor should jump for joy with this decision. Prior to Browning-Ferris, the Board—applying common law principles (and common sense) held that the “essential element” when evaluating joint employer status “was whether the putative joint employer’s control
over employment matters is direct and immediate.” So this Christmas it is getting just a little more joyful to be an employer!

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, and can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Tuesday, December 12, 2017

Staying Off the EEOC Naughty List



In May 2010, Chastity Jones applied to be a customer service representative at CMS, a claims-processing company in Mobile, Alabama. The position did not involve any in-person contact with customers, but called for speaking with customers only over the phone, from a large call center. She arrived at CMS a few days later dressed in a business suit wearing her hair in short dreadlocks.

Jones interviewed one-on-one with a CMS trainer who made no mention of her hair, nor did any other CMS employee who saw Jones. After her interview, CMS’s human resources manager, a white woman, informed Jones, and a number of other applicants, that they had been hired and explained that they would need to complete scheduled lab tests and paperwork before beginning employment.

After the group meeting, Jones met privately with the HR manager to talk about a scheduling conflict and to request a different date for her lab tests.  As Jones was about to leave, the HR manager asked her whether her hair was in “dreadlocks.” Jones said yes. To which the HR manager replied that CMS could not hire her with dreadlocks. When Jones asked why her dreadlocks would be a problem, the HR Manager said: “They tend to get messy, although I’m not saying yours are, but you know what I’m talking about.” Jones then told the HR Manager she would not cut her hair off.  To which the HR Manager responded that CMS could no longer hire her.

At the time, CMS had a written policy that: “All personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines. . . . Hairstyle should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable.” It had no formal written policy about dreadlocks.

The Equal Employment Opportunity Commission (“EEOC”) filed suit against CMS on behalf of Jones alleged that CMS discriminated against Jones on the basis of her race in violation of Title VII of the Civil Rights Act of 1964. The complaint alleged that “dreadlocks are black hair in its natural, unmanipulated state, and that the natural texture of black hair carries with it a deeply entrenched racial stereotype.” The Mobile Federal Judge dismissed the action based on the pleadings alone holding that dreadlocks are a “mutable characteristic” not protected by Title VII.

On Tuesday of this week the 11th Circuit Court of Appeals in Atlanta let the dismissal stand, and declined to reconsider as a full court a ruling that Title VII of the Civil Rights Act does not protect wearing dreadlocks because they are not an “immutable” characteristic of blackness.

Common Sense Counsel. This case comes on the heels of a Publix’s case 6 weeks ago with an opposite outcome because those dreadlocks were linked to the applicant’s Rastafarian religion. So if you want to stay off the EEOC naughty list, make your top 5 list and check it twice:1)  understand an employee only has to prove a good faith conviction to request a religious accommodation; 2) be accommodating to an employee religious services scheduling request; 3) be most careful before rejecting a religious connected garment or hairstyle request; 4)  be mindful of opposition to mandated vaccine request based on religious or disability reasons; and 5) start the New Year on the right track by conducting a policy review to ensure your company is prepared to address upcoming religious accommodation requests to give your company the gift of a litigation-free year!


Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, and can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Thursday, November 30, 2017

Monkey Selfie Legal Chuckle Appealed

In 2015 animal rights group People for the Ethical Treatment of Animals (PETA) filed a copyright infringement lawsuit on behalf of the macaque who took the infamous “monkey selfie,” claiming the animal is the legal owner of the photo. With the help of an intellectual property law firm it filed suit against the nature photographer whose camera was grabbed by a curious monkey and used to snap a picture of the ape's big toothy grin. The picture became a viral hit in 2011.

PETA claimed that the macaque, named Naruto, has the same authorship rights in the photo as any human would, meaning that the nature photographer infringed those copyrights by republishing it in a book about the infamous photo. The suit claimed that “Had the Monkey Selfie been made by a human using the unattended camera, that human would be declared the photographs’ author and copyright owner while the claim of authorship by species other than homo sapiens may be novel, 'authorship' under the Copyright Act … is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto… Naruto authored the picture through his independent, autonomous actions in examining and manipulating the unattended camera and purposely pushing the shutter release multiple times, understanding the cause-and-effect relationship between pressing the shutter release, the noise of the shutter, and the change to his reflection in the camera lens.”

In 2016 a California federal judge issued a written ruling explaining his decision to toss the PETA "monkey selfie" lawsuit. He ruled there was no indication that Congress believed nonhuman animals could be authors that have standing to sue under the Copyright Act. The Judge noted "The Copyright Office agrees that works created by animals are not entitled to copyright protection … It directly addressed the issue of human authorship in the Compendium of U.S. Copyright Office Practices issued in December 2014." A picture of Naruto’s Selfie was used as the example by the Copyright Office.

Following the Judges decision, PETA's general counsel claimed the group would "continue to fight for Naruto and his community, who are in grave danger of being killed for bush meat or for foraging for food in a nearby village while their habitat disappears because of human encroachment." And fight they did with an appeal to the Federal 9th Circuit Court of Appeals.

During oral argument before a Ninth Circuit panel one of the judge pressed the PETA attorney on how an ape has been harmed by the alleged copyright infringement of a famed monkey selfie, “There’s no way for the monkey to acquire or hold some money, there’s no loss to reputation. There’s not even an allegation that the copyright could have benefited somehow Naruto. What financial benefits apply to him? There’s nothing."

To the relief of all, PETA agreed in September 2017 to drop the infringement claims and in return, the nature photographer will pay 25 percent of any future proceeds from the "monkey selfie" toward related conservation charities.

Common Sense Counsel: Be careful not to let your pet click the selfie.


Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Thursday, November 16, 2017

Part 40 Final Rule - DOT Summary of Changes

2018 TO DO LIST FOR DOT EMPLOYERS 

On November 13, 2017, the Department of Transportation (DOT) published a final rule in the Federal Register (82 FR 52229)(much of this update is taken from the extremely well written release by ODAPC).  The rule, among other items, added four semi-synthetic opioids (i.e., hydrocodone, oxycodone, hydromorphone, oxymorphone) to the testing panel for all DOT regulated employees including FMCSA, PHMSA, FAA, USCG, FRA and FTA.  It also added methylenedioxyamphetamine (MDA) as an initial test analyte and removed the testing for methylenedioxyethylamphetaime (MDEA).
When is the final rule effective?
     The final rule is effective January 1, 2018.

What does this mean for employees?
     In addition to DOT 5 panel, you will also be tested for four semi-synthetic opioids (i.e., hydrocodone, oxycodone, hydromorphone, oxymorphone).  Some common names for these semi-synthetic opioids include OxyContin®, Percodan®, Percocet®, Vicodin®, Lortab®, Norco®, Dilaudid®, Exalgo®.  In addition, you will no longer be tested for MDEA.

What does this mean for employers and Consortium/Third Party Administrators (C/TPA)?
     As an employer or C/TPA, you will no longer be required to submit blind specimens to laboratories.

What does this mean for urine collectors?
     The shy bladder process has been modified so that the collector will discard any specimen provided during the collection event when the employee does not provide a sufficient specimen by the end of the three hour wait period.

What does this mean for laboratories?
   As an HHS-certified laboratory you will:
  • Add four semi-synthetic opioids: hydrocodone, oxycodone, hydromorphone; oxymorphone to your DOT testing panel;
  • Add MDA as an initial test analyte;
  • Remove testing for MDEA;
  • Add three more fatal flaws to the list of reasons when a laboratory would report a ‘rejected for testing’ specimen; and
  • Need to modify the reports [in Appendix B & C] you provide to employers and the DOT.
What does this mean for Medical Review Officers (MRO)?
     Several of your MRO drug test review processes have been modified.  For example:
·      The term ‘prescription’ has been clarified to only include a prescription that is legally valid as a Schedule II Drug under the Controlled Substances Act (this would exclude Medically Marijuana under a state law);
·      You have authority to conduct D,L stereoisomer and THC-V testing; and
·      The timing when you communicate a significant safety risk or medically unqualified decision under 40.327 has been modified. [amended 40.135(e) to add a five business day pause period for the Driver’s prescribing physician to contact the MRO to determine if a non-impairing effect drug/treatment can be prescribed so that the MRO would not be required to make a safety concern or medically disqualified report to the employer].
What does this mean for alcohol technicians?
      The list of NHTSA-approved Alcohol Screening Devices and Evidential Breath Testing Devices will appear on ODAPC’s website.
What does this mean for service agents?
·         Collectors, alcohol testing technicians, MROs, and Substance Abuse Professionals will be required to subscribe to ODAPC's list-serve at:  https://www.transportation.gov/odapc/ListServe_Notices.
·         Unauthorized use of DOT-branded items (such as logos or emblems) on a service agent’s website, publications, etc., could be a basis for the DOT to initiate a Public Interest Exclusion proceeding.
What are some of the other changes to Part 40?
  • The DOT added a new section reiterating that, in the DOT testing program, only urine specimens can be collected and analyzed at HHS-certified laboratories.
  • The DOT added language further emphasizing the existing DOT prohibition on the use of DNA testing on DOT drug-testing specimens.
  • The final rule made minor modifications to certain section headings.
  • The final rule moved the list of Substance Abuse Professional certification organizations from the rule text to ODAPC's website.
  • The final rule moved the MIS instructions from Appendix H to ODAPC’s website.
  • Outdated compliance dates were removed and links were updated.
  • Appendices B, C, D, and H were updated.
Where can I find a copy of the final rule?
      You can view the final rule on ODAPC’s web site www.transportation.gov/odapc/frpubs.

    2018 To Do List for DOT Employers by Tommy Eden, Partner Constangy, Brooks, Smith & Prophete, LLP
1.      Educate your managers, supervisors and DOT Drivers on the new 49 CFR Part 40 Regulatory changes;
2.      Make sure all your DOT Service Agents are making their own changes to accommodate the Part 40 changes;
3.      Update your DOT Policy Effective 1.1.2018 to reflect these changes, in addition to the changes caused by the DOT Clearinghouse Regulation Changes Effective 1.5.2017;
4.      Educate your DOT Drivers that effective January 1, 2018, they are subject to being tested for hydrocodone, oxycodone, hydromorphone, oxymorphone and they should now examine all of their prescriptions to see if they contain any of these semi-synthetic opioids prescription drugs (see draft NOTICE TO DOT REGULATED EMPLOYEES OF NEW TESTING PANEL a link to the notice is found at www.alabamaatwork.com )
5.      Educate your DOT Drivers if they do have such a prescription as listed above, now is the time to visit with their prescribing physician to determine if they can be put on an alternative treatment or medication;
6.      DOT employers should update their job descriptions to make the ability to operate in a constant state of alertness, and safe manner an essential job duty, and also include a pre-duty impairing effects prescription medications safety policy within their DOT Policy (this should also include medical marijuana as an impairing effects substance as well even though it is not acceptable as a legitimate medical excuse under DOT);
7.      DOT employers should amend their DOT FMCSA Policy to give Drivers fair notice that the DOT Employer under 49 CFR Part 391.11, has the final authority to make fitness for duty disqualification determinations for its FMCSA Drivers.



If you need policy support, or additional information contact Tommy Eden, a Partner with Constangy, Brooks, Smith & Prophete, LLP  at teden@constangy.com or Direct: 334-246-2901/ Cell: 205-222-8030. Blog at www.alabamaatwork.com with links.  Firm website: www.constangy.com .

Link to Notice to DOT Regulated Employees of New Testing Panel.

Thursday, November 9, 2017

Hot Potato #MeToo Social Media Post Concern Employers

With the high-profile sexual harassment #MeToo movement it is a good idea to develop your employer’s plan. The movement features women posting #MeToo on social media, or in high profile TV spots, to indicate they were sexually harassed at some point in their lives. The goal of this hashtag is to draw attention to the magnitude of these previously unreported problems.

Sexual harassment in the workplace is unlawful under Title VII. However, being a “total jerk” or “just creepy” is not itself illegal or actionable unless that supervisor, manager, Hollywood producer, is just a total jerk or just creepy to women only. A #MeToo message implies that her boss may have sexually harassed her which may put your organization at risk.

Now that you, wearing your employer hat, have seen the post, what comes next? Bury your head in the sand? Ignore it? Or Be Proactive? Take action today like Speaker Ryan to nip it in the bud?

First Question: What does your Anti-Harassment Policy say?

Anti-harassment policies should include specific reporting mechanisms for employees who believe they have been subjected to unlawful harassment or discrimination. There should be two distinct reporting procedures such as call 1-800 number, or contact a specific HR representative or specified high ranking company official by title. Make sure you are specific to debunk a report that never was made. Once a complaint is submitted, the policy should provide for a prompt contact back to the employee (within 48 hours) and then a thorough (legally defensible) investigation into the allegations. There is much more I could say on the legally defensible stuff but you get the point.

 But I have never included in a policy for one of my employer clients that has a “vague post on a social network” as a designated reporting. Most “put their head in the sand” employers might take the position that “no report was made” and thus no duty to investigate. And there is in fact an affirmative defense in the law to the claims in cases involving harassment by a supervisor that does  not involve a tangible employment action if it can show that: (1) it took reasonable steps to “prevent and correct promptly any sexually harassing behavior;” and (2) the plaintiff-employee “unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise – employer published a policy with training.”

The Better Approach is to Seize a Teachable Moment

In addition to potential harassment claims, EEOC Charges, Lawsuits, totally distracted workforce, the #MeToo post reveals that your employees might benefit from anti-harassment training. Employers should strive to ensure that employees understand its anti-harassment and anti-discrimination policies and reporting procedures, as well as its commitment to preventing and correcting unlawful behavior in the workplace. The best way to do that is video training, smartphone is OK, with a request for all employees to again sign the policy. Also, great time to update your policy with a workplace civility anti-bulling policy as well. Employer training should not be focused solely on avoiding liability but also should be designed to proactively eliminate harassing and disrespectful conduct, and create a workplace environment where it is all about respect. In fact, let’s start a #MeTooItsAllAboutRespect movement!
Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com




Friday, November 3, 2017

Big Coffee Fight Brewing Over Trade Secrets


Ronald DiFabio executed a Confidentiality Agreement when he started employment with Keurig Green Mountain Inc. in which he promised that he would not, at any time, directly or indirectly, use any Confidential Information or disclose to anyone outside of Keurig any such Confidential Information. DiFabio further agreed that if he ceased to be employed by Keurig at any time, he would immediately return any property belonging to Keurig.

After DiFabio left his employment with Keurig to join SharkNinja, he violated his obligations to Keurig under his Confidentiality Agreement by asking Keurig employees to email him Keurig internal organizational charts and proprietary information about the merchandising teams at several of Keurig’s retail customers, according to a Verified Complaint filed by Keurig in Massachusetts Federal District Court this week.(Link:https://drive.google.com/file/d/1SgbH71-_qj3sMXxPPeAF7F8A8Zg6Qm6J/view?usp=sharing) Also alleged is that before his resignation from Keurig in late 2016, DiFabio removed at least nine electronic files containing Keurig’s confidential business information and/or trade secrets from Keurig’s electronic systems, as well as hard copies. He then loaded them, or “migrated them” onto SharkNinja’s electronic systems.

Co-worker Steven Turner, who signed the identical Keurig Confidentiality Agreement, resigned from Keurig in 2017 to join DiFabio at SharkNinja. According to the same Federal Court Complaint, Turner violated his obligations to Keurig under his Confidentiality Agreement by emailing, to his personal email account, and a short time before his resignation, Keurig’s Confidential Information, including highly confidential business, marketing and sales plans prepared by Keurig relating to one of Keurig’s largest customers Bed Bath & Beyond, which included a power point presentation to the customer.

This week Keurig filed suit against both employees under the Defend Trade Secrets Act (“DTSA”) which provides a federal cause of action to the owner of a trade secret that is misappropriated and is related to a product or service used in (or intended for use in) interstate commerce. 18 U.S.C. §1836(b). The Complaint included a claim under the Computer Fraud and Abuse Act (“CFAA”) which provides a private right of action where a party knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value. 18 U.S.C. §1030(a)(4).

Common Sense Counsel: CFAA and the DTSA are significant weapons to combat employee trade secret theft. Be prepared to quickly take these steps now: 1) update all non-disclosure agreements, confidentiality agreements, employment agreements, consulting agreements, and independent contractor agreements to include new DTSA non-disclosure provisions to include the required notice signed by all employees; 2) documents containing trade secrets should be labeled as confidential, their distribution should be limited, they should be maintained in secure areas, and individuals who are privy to such secrets should be trained on the nature of that information and how to safeguard it; 3) access to computer files containing such information should be restricted and tracked; 4) those with access should be trained on the files’ confidentiality; and 5) because trade secrets litigation often involves violations of non-competition or non-solicitation agreements, be prepared to bring  such claims in tandem with the DTSA and CFAA violations.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com


Thursday, October 26, 2017

Federal Judge Refuses to Slow the Demise of Obamacare


The Affordable Care Act requires health insurance companies to subsidize the cost of co- payments and deductibles for lower-income people. In turn, the Act requires the federal government to make advance payments to the companies to cover the cost of this subsidy. The legal problem in this case is that while the Act requires the insurance companies to be paid, but the Act did not actually appropriate money for these payments. If Congress doesn't appropriate money for a program, the Constitution prohibits the executive branch from spending money on that program – even if Congress previously enacted a statute requiring the expenditure.

The Obama Administration took the position that the Affordable Care Act indeed appropriated money for the payments, so it drew funds from the U.S. Treasury every month to make them. The Trump Administration initially continued this practice, but has now concluded that the Act did not actually make the necessary appropriation and terminated the payment effective October 2017, at least until Congress decides to appropriate the money.

In response, the State of California, along with 17 other states and the District of Columbia, filed this lawsuit, contending the Obama Administration was right.  They sought an emergency ruling requiring the Trump Administration to continue making the payments while the lawsuit is pending.

On Wednesday October 2017, a California Federal District Judge Vince Chhabria denied the States’ request. His ruling made these two critical findings. First, although the case is at an early stage, and although it's a close question, it appears initially that the Trump Administration has the stronger legal argument. Second, and more importantly, the emergency relief sought by the states would be counterproductive. State regulators have been working for months to prepare for the termination of these payments. That would not include the State of Alabama, from what I have been told. And although you wouldn't know it from reading the states' papers in this lawsuit, the truth is that most state regulators have devised responses that give millions of lower-income people better health coverage options than they would otherwise have had. This is true in almost all the states joining this lawsuit, including California, whose regulators issued a press release just days before the suit explaining how so many lower-income people will benefit.

https://drive.google.com/file/d/0B3p_OgTwCyq6Z1pkMHhKVWkwaVE/view?usp=sharing

Common Sense Counsel: I recently presented a plan to local industry titled President Delivers Opportunity to Lower Employer Medical Cost to band together and explore the formation of a Multiple Employer Welfare Arrangement (MEWA), with employee incentivized Health Reimbursement Accounts (HRA) coupled with wellness plans, child care scholarships, that would enjoy lower premiums, more local control of healthcare decisions and result in happier and healthier employees – an employer’s greatest asset! See my 10.15.2017 Column Trump Decides to Lower Small Business Health Care Premiums for details.  Expect the slow demise of Obamacare, sky rocking premium increases, deductibles and co-pays in Alabama in 2018. The solution to healthcare is local. It is not found in Washington. 

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at teden@constangy.com or 334.246.2901 or 205.222.8030. Blog at www.alabamaatwork.com