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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: 

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 or 334-246-2901. Blog at

Friday, August 19, 2016

Marijuana Remains an Illegal Drug

By: Thomas Eden

On August 11, 2016, the U.S. Drug Enforcement Administration (DEA) denied two petitions to reschedule marijuana under the Controlled Substances Act. In addition, it announced a policy change to foster research by expanding the number of DEA-registered marijuana manufacturers (currently only the University of Mississippi is registered), and issued a statement of principles concerning industrial hemp.

Acting DEA Administrator Rosenberg stated that marijuana will remain a Schedule I drug because the research does not yet support a reclassification. More specifically, the DEA found that the current medical and scientific evidence demonstrates that marijuana has no currently accepted medical use in treatment in the United States. He stressed that the DEA supports legitimate medical and scientific research concerning the use of marijuana and will continue to do so and “if the scientific understanding about marijuana changes – and it could change – then the decision could change.”

DEA and USDA Issue Joint Statement of Principles on Industrial Hemp helpful in Alabama

The U.S. Department of Agriculture, in consultation with the DEA and the FDA, announced guidelines for entities who participate in the growth and cultivation of industrial hemp under the 2014 Farm Bill which allowed for universities and state departments of agriculture to begin cultivating hemp for limited purposes. Although hemp comes from the cannabis plant – as does marijuana – it generally contains smaller amounts of the psychoactive component tetrahydrocannabinol (THC). Industrial hemp can be used to make food, fuel, fabric, plastics, construction materials, textiles and paper, among other things. In recent years, many state legislatures, including Alabama, have enacted laws to promote the development of industrial hemp production. The DEA’s statement of principles is intended to clarify how federal law applies to these activities and will allow Alabama to move forward quickly.

Common Sense Counsel: In plain speak, the drug testing law for employers with regard to marijuana has not changed and it remains illegal under federal law. Even though some states have enacted laws permitting the use of medical marijuana and recreational marijuana in certain circumstances, employers can still “not accommodate” its use. Employers faced with deciding whether to follow federal law or to comply with state laws, particularly in those 7 states that prohibit employment discrimination against those holding a medical marijuana card, should adopt a state compliant drug free workplace policy with the correct “safety sensitive” language.  The policy should also contain language in compliance with the new OSHA post-accident testing guidance. The local SHRM Chapter has a breakfast briefing on this topic on September 2. To Register:

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 or 334-246-2901. Blog at

Thursday, August 11, 2016

Bullies Can Be Costly

 By: Thomas Eden

Patricia Hahn, a licensed vocational nurse alleged in her lawsuit she was bullied and sexually harassed by a doctor at work and the case was recently tried before a Dallas, Texas jury. Specifically, Hahn testified that the doctor had yelled, berated and punched her in the face with clinched fists, and later abruptly swung his two clinched fists to within inches of her face. On another occasion, he bent her backward in her chair, got inches away from her face as he loudly screamed threats and insults in her face. And that on three occasions, the doctor screamed at her with raised arms and clenched fists, saying “Just shut up. Just shut up, I'm sick of you,” according to court documents.

Hahn reported the behavior to her human resources department. Shortly thereafter Hahn testified she was called by the doctor into an after-hours meeting in his office, where he gave her a “demonstration” of what screaming was to prove he had not screamed at her previously.

Hahn claimed that this all occurred while working for a Dallas Urology Practice during work hours over a period of three years. Hahn was eventually fired.

On Monday of this week the Dallas jury returned a $1.08 million verdict in her favor on claims of sexual harassment and intentional infliction of emotional — which verdict will not be enforced. As luck would have, it just minutes before the jury returned from deliberations a $440,000 settlement was inked by the parties. In fact, the parties were signing the settlement paperwork when court staff knocked on the door and informed them a jury verdict had been reached. The verdict came after six days of trial and about four-and-a-half hours of deliberation.

Common Sense Counsel: This Dallas jury proved to be not very tolerant of bullying. While bullying alone is not discrimination under federal or Alabama law, when combined with protected status, or intentionally directed towards an employee who has engaged in protected conduct, it can be a dangerous courtroom combination. Bulling can be verbal, physical and non-verbal. Below are abbreviated descriptions:

·  Verbal Bullying: using browbeating language or behavior, slandering, ridiculing or maligning        a person or his/her family; spreading rumors or gossip regarding individuals; offensive name        calling or nicknaming; using a person as the target of ...;
·  Physical Bullying: pushing; shoving; kicking; poking; tripping; assault, or threat of ...;
·  Non-verbal Bullying: non-verbal threatening gestures, looks or actions that convey threatening      messages; purposefully singling out, ignoring, excluding ...

This record verdict should cause every employer to take notice and update their Professional Conduct and Prohibition Against Harassment Policy to include anti-bullying language, train on the updated policy, nip it in the bud when you witness it, promptly investigate when reported and take corrective action. Employers and Human Resource professionals need to watch out for their managers who cross the line between legitimate criticisms and berating and belittling an employee.

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 or 334-246-2901. Blog at

Friday, August 5, 2016

Chink in Your Anti-Harassment Armor?

By: Thomas Eden

Kandice Pullen, an employee of the Caddo Parish School Board, was hired as a temporary clerical employee working in the in the central office purchasing department. Pullen claimed that her supervisor sexually harassed her by repeated verbal sexual harassment, touched her thigh once and put his arm around her several times. On one occasion he also called her into his office and showed her inappropriate pictures of other women that he had stored on an external hard drive. Pullen did not contemporaneously tell anyone at the office about the harassment. Later, another temporary clerical employee filed a sexual-harassment complaint against the same supervisor based on similar inappropriate remarks and identified Pullen as a person potentially subject to similar harassment.

The Board placed its chief operations officer in charge of investigating the complaint, who preparing a written report according to the Board’s standing procedures for investigation of sexual-harassment allegations. He concluded that the Supervisor’s conduct was not sexual harassment but was nonetheless unprofessional and inappropriate. He recommended suspension without pay for a week and required to undergo counseling. The Board’s superintendent agreed, and punishment was imposed. In the meantime, Pullen filled an EEOC Charge detailing the Supervisor’s alleged harassment. Pullen later sued the Supervisor and the Board.

While the Board won at the Federal District Court level, the 5th Circuit Court of Appeals found a chink the Board’s defense. Normally an employer is strictly liable for a supervisor’s harassment of an individual whom he or she supervises. The Ellerth/Faragher affirmative defense is an exception and is available to employers where a plaintiff alleges sexual harassment by a supervisor but does not claim that the harassment resulted in a tangible employment action. The defense has two elements.

First, the employer must show that it exercised reasonable care to prevent and correct sexual harassment. Second, it must establish that the employee unreasonably failed to take advantage of preventive or remedial opportunities provided by the employer. The employer bears the burden of proving both elements by a preponderance of the evidence. Pullen produced evidence that, if believed, would show that employees at the central office were not trained on sexual harassment, were not informed of the existence of a policy, and were not told whom to contact regarding sexual harassment reports. Pullen, and her Supervisor, testified they were not given a copy of the harassment policy or any training on the subject. The 5th Circuit Court of Appeals on July 20 concluded that the Board did not prove that the policy was sufficiently publicized, and thus held there was sufficient evidence for a jury to find that the Board did not take reasonable steps to prevent and remedy sexual harassment. The case will go to a jury.

Common Sense Counsel: There is simply no substitute for a legally compliant anti-harassment policy, coupled with employee anti-harassment training. At the end of the day you need in personnel files each employee’s acknowledgment signature on the anti-harassment policy, and training log, or you may also find your anti-harassment Armor is full of holes.

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 or 334-246-2901. Blog at

Thursday, July 28, 2016

Higher Immigration Penalties Effective August 1

By: Thomas Eden

The U.S. Department of Homeland Security (DHS), the U.S. Department of Justice (DOJ), and the U.S. Department of Labor (DOL) recently each released final rules to increase immigration-related penalties effective August 1, 2106. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 requires the agencies to make annual adjustments for inflation based on the Consumer Price Index for All Urban Consumers. These increased fines will be retroactive to November 2, 2015.

I-9 “paperwork violations” refers to technically improperly completed I-9s, while the “unlawful hires” refers to knowingly hiring, recruiting, referring, or retaining unauthorized alien workers, or just not being able to locate a Form I-9 for that person. Increased Penalties:

·        For I-9 paperwork violations:  current $110 to a maximum penalty amount of $1,100; Increases $216 to $2,156 per Form I-9;

·         For unlawful hires, current amounts ranging up to $16,000 for each unauthorized worker;

·         Penalties for first offenses involving unlawful hires will increase from a minimum penalty amount of $539 to a maximum penalty amount of $4,313 for each unauthorized worker;

·         Penalty amounts for second offenses up to $10,871 for each unauthorized worker;

·         Penalty amounts for third or subsequent offenses will be up to $21,563 for each unauthorized worker;

·         DOJ’s document abuse penalties increase to between $178 and $1,782. “Document abuse” is a form of discrimination in which the employer asks the employee to provide more documents or different documents than the law requires, or where the employer refuses to accept facially genuine documents;

·         DOJ’s  “Unfair immigration-related employment practices” increase to a maximum amount of $17,816 for each individual discriminated against. This would include refusing to employ someone because the person is not a U.S. citizen or because the person appears to be foreign, even though the person might have valid authorization to be employed in the United States; and

·         DOL penalties increase the penalty scheme that applies to H-1B Labor Condition Application (LCA) violations from currently $1,000; $5,000; or $35,000, depending upon the LCA violation. The new civil penalty limits will increase to $1,782; $7,251; and $50,758.

Common Sense Counsel Best Immigration Practices include:
1.  Annual Form I-9 audits by a workplace immigration attorney with a good faith sign-off; 

2.  Establish and maintain appropriate policies, document retention practices and safeguards against use of the verification process for unlawful discrimination, and to ensure that U.S. citizens and authorized workers do not face discrimination with respect to hiring, firing or recruitment or referral for a fee because of citizenship status or national origin;

3. Have all involved in the hiring process training on how to properly complete the Form I-9; and

4. Appreciate that an ounce of prevention now is priceless!

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 or 334-246-2901. Blog at

Friday, July 22, 2016

NLRB Confirms Joint Employer for Temps

 By: Thomas Eden

The National Labor Relations Board is again changing the rules for employers, but the outcome is not really a surprise. The NLRB ruled 3-1 in Miller & Anderson, Inc., that unions can combine in a single bargaining unit consisting not only of a company’s regular employees, but also of temporary employees performing similar work who are jointly employed by the staffing agency and the employer. The decision is significant particularly in light of the expansive use of “temporary” or “leased” employees in the local workplaces.

Under the standard that has applied for about the past 12 years until now, a combined bargaining unit like this was not allowed unless the employer of the temporary employees (the “supplier” employer) and the employer of the regular employees (the “user” employer) both consented. The Board majority cited data from the Bureau of National Labor Statistics and other publications indicating that there may be as many as 4 million temporary workers in the United States by the year 2022, and noted that temporary employees often work alongside regular employees in industrial and blue-collar jobs.

The Board said, temporary workers are actually employees of the user employer as well as the staffing agency under a theory of joint employment. The Miller & Anderson decision follows the Board’s controversial Browning Ferris Industries decision from last year, which liberalized the test for joint-employer status in the temporary worker context.  Under BFI, the joint-employer relationship will be found when the supplier and user employer share responsibility for determining the essential terms and conditions of the temporary worker’s employment. Read together, BFI and Miller & Anderson create a one-two punch for employers: BFI makes it more likely that temporary employees will be considered “jointly employed” by the user employer, and Miller & Anderson makes it more likely that the “jointly employed” temps will wind up in the same bargaining unit with regular employees.

Common Sense Counsel:  As a result of the Miller & Anderson decision, an employer’s use of temporary employees now creates a higher risk for union organization attempts. Companies will need to reevaluate their labor relations action plans to include the concerns of temporary employees, including the pay and benefits of temporary employees. Disciplining temporary employees could create potential joint-employer liability. 
However, you can be proactive by taking these steps:.

Critically have all your service agreements reviewed;
Make sure they have their own employment policies and employee handbooks; 
Look at how the work performed by your employees is different from, or the same as, the work performed by the staffing employees;
Look at pay, working conditions, type of work, etc, to see if they are the same or uniquely different; and
Include an expansive indemnification clause in your contract.

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. The above was taken from a Constangy Client Bulletin. He can be contacted at or 334-246-2901. Blog at with link to full Bulletin.

Friday, July 8, 2016

DOT Employer Cleared for Firing At-Risk Employee

By: Thomas Eden

Eileen Felix was employed by the Wisconsin Department of Transportation (“WisDOT”) in the Division of Motor Vehicles customer service facility in Appleton, Wisconsin. She held the position of DMV Field Agent Examiner and her duties included administering road tests to new drivers applying for licenses (approximately 20 per week) and collecting the fees associated with these transactions, according to court filings.

On the morning of April 18, 2013, Felix’s supervisor heard muffled screaming coming from the public lobby of the office. He found Felix She lying on her side, clutching her cell phone, and crying out. He noticed that she had marks, scratches, and cuts on her right wrist, some of which were bleeding slightly. He would later recall her saying that “[y]ou all hate me … they all hate you … every body hates you” and “[t]hey think you’re crazy … you all think I’m crazy … they want to get rid of you,” as she rolled onto her back and began kicking her legs. He then noticed that she also had scratches and cuts on her left wrist and heard her say “They’re too dull … the knives were too dull” and “God let me die … I just want to die.”

Felix suffered from a variety of mental health disabilities, including posttraumatic stress disorder, major depressive disorder, anxiety, obsessive compulsive disorder, and a medical phobia. She managed the symptoms of her disorders by taking prescribed medication and attending counseling and therapy sessions.

Felix was placed on medical leave and WisDOT ordered her to undergo a fitness for duty Independent Medical Examination (“IME”) in order to determine whether she could return to work. Her supervisor wanted the IME to consider both her own safety and the safety of others in the workplace, as he was concerned about the fact that Felix’s roadtest responsibilities regularly placed her alone in automobiles with 16yearold drivers seeking their first licenses. The IME stated, “Ms. Felix remains at increased risk for potentially violent behavior toward self and others within the workplace.” WisDOT determined that Felix was unfit for continued employment and, after seeking to reasonably accommodate her, terminated her employment on that basis.

Felix then sued under the Rehabilitation Act of 1973, contending that she was discharged solely because of an anxiety disorder and related disabilities. The federal district court entered summary judgment against Felix, reasoning that the undisputed facts demonstrated that she was discharged not solely because of her disabilities but rather based on workplace behavior that indicated to her employer that she posed a safety risk to herself and others.

On Wednesday, the Seventh Circuit of Appeals ruled that the WisDOT demonstrated it legitimately fired Felix for being a safety risk to herself and other employees, shutting down Felix’s suit alleging she was wrongfully fired because of her anxiety and other disabilities.

Common Sense Counsel: as the saying goes, having a qualified medical professional render a correctly worded independent medical opinion, under the ADA or Rehab Act, before you take adverse employment action - “Priceless” !

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 or 334-246-2901. Blog at