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Monday, February 18, 2019

It Takes a Village to Defeat a Union

Scabby the Rat is a familiar sight in certain parts of the country when a dispute breaks out between a union and an employer. He is notable both for his symbolic meaning and for his size—he is a giant, inflatable balloon, available in sizes up to 25 feet tall. Scabby made his appearance after Local 330 of the Construction and General Laborers’ Union learned that a masonry company working at Kolosso Toyota, in the Town of Grand Chute, Wisconsin was not paying area standard wages and benefits.

The Union decided to engage in informational picketing at the site and to set up Scabby in the median right of way directly across from the dealer, along the frontage road for on a major local thoroughfare. Union members installed a 12-foot version of Scabby by tethering the huge inflatable rat to stakes that had been pounded into the ground.

The protest went smoothly on the first day, but trouble began to brew when on the Town’s Code Enforcement Officer, went to the protest site and told the Local’s president that the Union would have to deflate Scabby because the rat violated the Town’s Sign Ordinance. When all was said and done, the Union was forced to remove Scabby from the scene and resort to other methods of protest. That was when the Union filed a legal action in Federal Court where it asserted that the Town’s 2014 Ordinance violated the First Amendment because it distinguished among signs on the basis of content. The Wisconsin federal judge denied its motion for a preliminary injunction and later entered summary judgment for the Town. The Union was seeking damages based on the fact that it had been forced to pay members to assist in the area-standards picketing and to draw greater resources from its organizing affiliate to staff and maintain the protest. 

Recently the 7th Circuit Court to Appeals heard the case and ruled, “We may uphold a law that restricts even protected speech in a public forum if the restriction is content neutral, narrowly tailored to serve a significant governmental interest, and leaves open ample alternative ways to communicate the desired message. There is no doubt that a union’s use of Scabby to protest employer practices is a form of expression protected by the First Amendment. We also noted, however, that a municipality is entitled to implement a nondiscriminatory ban of all private signs from the public roads and rights-of-way. Grand Chute said that it had done no more than that. We agreed with the Town that its 2014 Ordinance was “comprehensive and content-neutral.” But that is not the end of the story. We pointed out that even a neutral ordinance can violate the First Amendment if it is enforced selectively, permitting messages of which the Town approves while enforcing the ordinance against unions and other unpopular speakers.”  In the end the Court held hat the Town did not discriminate on the basis of content when it ordered Scabby deflated.

Common Sense Counsel: When Unions are involved you can usually smell a rat. For Cities, look again at your sign ordinance in accordance with the guidance given by the Court in this case. There is no faster way for a city to watch its industrial life blood bleed out, than to allow unions to invade its industrial parks unhindered. For employers, conducting TIPS Training for your supervisors now is the best way to take preventive action. With regards to unions, under the National Labor Relations Act an employer can not Threaten, Interrogate, Promise or Spy (TIPS). Either way, its takes a village to defeat a union.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL and West Point, GA can be contacted at or 334-246-2901. Link to case at

Tuesday, February 12, 2019

Deadline for filing EEO-1 Workforce Data Extended through May

The Equal Employment Opportunity Commission has announced that employers will have a two-month extension of the deadline to submit their EEO-1 workforce data report for 2018.

The annual deadline is usually March 31, but in a press release on February 1, 2019, the EEOC stated, “Due to the partial lapse in appropriations, the opening of the EEO-1 has been postponed until early March 2019. The deadline to submit EEO-1 data will be extended until May 31, 2019.”
EEO-1 reports must be filed by: 

  • Employers with 100 or more employees;
  • Federal contractors or first-tier subcontractors with 50 or more employees and either
    • a federal contract, OR
    • a federal subcontract, OR
    • a federal purchase order of $50,000 or more.
EEO-1 reports include information about the race, ethnicity, and sex of employees, broken down by job category. The survey is intended to create workplace opportunities by enforcing federal anti-discrimination laws. To learn more about the EEO-1 survey, and the date the 2018 survey opens, visit the EEO-1 website.

Friday, February 1, 2019

Is "Medical Marijuana Accommodation" on the way in California?

The legalization of medical and recreational marijuana use in California has placed employers in a tough situation as they grapple with crafting and enforcing workplace drug policies that comply with an area of the law that is largely unsettled. Marijuana remains a Schedule I drug under federal law, and California employers may maintain and enforce policies prohibiting its use. 

But that may change soon. In February 2018, a bill known as AB-2069 was proposed, which would amend the California Fair Employment and Housing Act to make users of medical marijuana a legally protected class. This means they would be protected from employment discrimination and entitled to reasonable accommodation. AB-2069 is still working its way through the legislature. Meanwhile, here is an overview of the evolution of medical marijuana law in California.

1996 – California became the first state to legalize medical marijuana. Proposition 215 legalized the cultivation and use of medical marijuana for the treatment of illnesses “for which marijuana provides relief." As a result of Proposition 215 and SB 420, Californians were able to easily obtain medical marijuana prescriptions for seemingly any medically related reason.

2008 – The California Supreme Court ruled in Ross v. RagingWire Telecommunications, Inc., that California law does not prohibit an employer from refusing to employ, much less accommodate, a medical marijuana user, even if the marijuana use is permitted under California law. The growing acceptance of marijuana use culminated in 2016 with the passage of Proposition 64, which legalized the recreational use of marijuana in California. The sale of recreational marijuana became legal in California on January 1, 2018. 

Fifteen states currently have laws, or a constitutional amendment, protecting medical cannabis patients from employment discrimination: Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Massachusetts, Michigan, Minnesota, Missouri, Nevada, New York, Oklahoma, Pennsylvania, and Rhode Island, although the level of protection varies from state to state. If enacted, AB-2069 would undoubtedly create a host of issues for employers with operations in California.

The pending AB-2069 includes two critical limitations. First, it explicitly states that employers may discipline or terminate an employee who “is impaired” at work or during work hours due to the use of cannabis. Unlike alcohol, where Breathalyzer tests may show the exact level in a person’s blood, there are no available tests that show the current level of impairment for marijuana at a specific point in time. Drug tests show only that marijuana was consumed within the past 30 days or so. Thus, it will be difficult for employers to prove that an employee was under the influence of marijuana at work. Second, AB-2069 acknowledges that because marijuana remains illegal under federal law, California employers must be allowed to refuse to hire or may terminate a marijuana user if employing the person would “cause the employer to lose a monetary or licensing-related benefit under federal law or regulations.”

Common Sense Counsel: Employers with California operations, or in any of the 15 protective states listed, would be wise to plan ahead and consider policies for future implementation in the event that California joins the growing list of states protecting medical cannabis patients in the employment context.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL who develops employer drug testing policies nationwide and can be contacted at or 205-222-8030. Tommy wishes to thank Aaron Rutschman in the Los Angeles – San Francisco office for his excellent Constangy Blog Post. Blog at with links.

Monday, January 21, 2019

Top 7 Human Resource Resolutions for Alabama Employers in 2019

1. Prepare now for new “White Collar Exemptions” Under the FLSA

In March the U.S. Department of Labor (DOL) is scheduled to release for comment a new proposed rule for "Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees" under the Fair Labor Standards Act (FLSA). The current annual threshold will likely increase from $23,660 to approximately $30,000 (as opposed to the $47,476 threshold proposed in 2016). Prepare to repeat the 2016 job description exercise, but not as painful. 

2. Research if your Company a Potential Joint Employer

The DOL is considering a new proposed rule, that could change the test for determining whether an entity is a joint employer. The proposed DOL changes to its regulations concerning joint employment under the FLSA are intended to update and clarify the 60-year-old legislation.

3. Update Policies Related to Harassment and Discrimination

In the age of #MeToo, some companies still don't understand the importance of having air tight harassment policies and a written systemic process to investigate allegations. Scheduling employee and management training, providing all employees a legally compliant signed policy, and dual reporting channels to make a report, are all critical. Then know how to conduct an attorney-client privileged legally defensible workplace investigations of allegations. The goal is to provide the employer an affirmative defense. Expect new EEOC Harassment guidelines to be released shortly. 

4. Employee Health Insurance and Wellness Choices will Continue Evolving

The U.S. District Court for the Northern District of Texas on Dec. 14, 2018 declared the individual Affordable Care Act (ACA) mandate to be unconstitutional. So, the future of the ACA is uncertain. Employers should begin to look now at new plan options. The EEOC announced that it will likely propose new Wellness regulations in June 2019, after the last were overruled effective January 1, 2019. Also look for the highly anticipated final Health Reimbursement Account (HRA) Regulations to be released in early 2019.

5. Update/Adopt Employee Arbitration Agreements

Employers with employee arbitration agreements may wish to adjust their agreements as needed to boost enforceability. Others may wish to adopt them. The Supreme Court has given arbitration agreements a full green light of enforceability.

6. Update Noncompete/Confidentiality Agreements

Many Alabama Employers have not yet updated their agreements to bring them into compliance with the Federal Defend Trade Secrets Act, the 2016 Alabama Non-Compete Act or the Alabama Trades Secrets Act; all of which provide forward thinking employers multiple remedies against data thieving employees.  

7. Update FMLA Policies, Forms & Procedures

On Aug. 28, 2018, the DOL released new opinion letters on the use of Family and Medical Leave Act leave time and the applicability of “no-fault” attendance policies or attendance policies with point systems as they are applied to the FMLA. Employers should consider reviewing their FMLA policies in light of these opinion letters and the increasing abuse of intermittent FMLA leave. In September 2018 the DOL released updated FMLA forms and certification notices, which employers should be using now. The forms are available at

In 2019 resolve to be alert to these 7 issues and prepare to make the necessary changes to your policies and procedures. And Have a Blessed 2019!

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL and West Point, GA can be contacted at or 334-246-2901.

Friday, January 18, 2019

EEOC & DOJ Tag Teaming Employers on Harassment – Especially State and Local Governments

On December 21, 2018, the EEOC (Equal Employment Opportunity Commission) and DOJ (U.S. Department of Justice) exchanged Christmas gifts early. The EEOC is now in a renewed partnership with the DOJ allowing for quicker referral action on harassment allegations against state and local government employers, putting those public employers more squarely in the EEOC's crosshairs and signaling to private businesses that harassment will remain a top enforcement priority.

Under the Memorandum of Understanding, or MOU, these the agencies will share information and enables them to better coordinate their activities when charges alleging Title VII violations are brought against public employers at the state and local level. This enhanced coordination will allow the agencies to move more briskly in instances where the EEOC finds in the initial phases of its investigation that immediate action is needed to protect workers. In those cases, the EEOC will give the DOJ the information it needs to seek an injunction from a federal judge while a charge is still being investigated.

This is an outgrowth of the commission's sharpening focus on #MeToo legal issues under Title VII, the EEOC and DOJ split enforcement authority for Title VII claims levied against state and local employers. The EEOC has touted the partnership as a way to "ensure the efficient use of resources and a consistent enforcement strategy" against state and local government employers. "Harassment at work can have a devastating impact on people," Chairman Victoria Lipnic said in her statement. "The employees in the public sector deserve as much of our attention on this issue as those in the private sector." Like when an employee is fired while an investigation into their allegation is pending, you can expect that the DOJ will vigorously insert itself in those instances to assist the EEOC in obtaining temporary restraining orders or injunctive relief during the investigation phase of a case. 

Common Sense Counsel: In light of the MOU take the following proactive steps: 1) state and local government employers should think proactively about nipping discrimination and harassment in the bud before it occurs, as well as systemic ways to defend against charges when they are filed; 2) Make sure your existing policies are in tune with relevant anti-discrimination and anti-harassment laws, and the 2018 EEOC Harassment Guidance ; 3) Train managers and HR staff on those policies and make sure workers know both that the policies exist and what the internal procedures are if they want to pursue an allegation; 4) Actually deal with issues internally when they arise and to properly investigate them and make sure that appropriate measured action is taken; 5) To the extent that those protocols and policies need to be more robust and in writing, or training is needed, now is a really good time to turn attention to those issues; 6) In the EEOC 75 page harassment report the agency took a deep dive into the issue of workplace harassment and offered employers a series of practical recommendations for curtailing it – better read it now or you will see it in the TRO petition; and 7) realize if you are not handling these kinds of matters appropriately, the EEOC and DOJ will have you on their radar locked and loaded to fire in federal court!

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL and can be contacted at or 205-222-8030. Blog at with links.

Friday, January 4, 2019

How People are Dying at Work

The U.S. Bureau of Labor Statistics reported on December 18, 2018: a total of 5,147 fatal work injuries were recorded in the United States in 2017. Fatal falls as the cause of death were at their highest level in the 26-year history of the Census of Fatal Occupational Injuries, accounting for 887 (17%) of worker deaths, up over 30% since 2011. This coincides with the Marijuana Greening of America which also produced a crop of safety-sensitive impaired workers. Transportation incidents remained the most frequent fatal event in 2017 with 2,077 (40%) occupational fatalities.

Unintentional overdoses due to non-medical use of drugs or alcohol while at work increased 25% to 272 in 2017. This was the fifth consecutive year in which unintentional workplace drug overdose deaths have increased, and increased by 120% from 2011 to 2017. This appears to be directly linked to the ever-increasing consequences of an opioid addicted America. Other trends show that certain employer safety guards and safety programs are having a major impact:

  • Contact with objects and equipment incidents were down 9% (695 in 2017 from 761 in 2016) 
  • Fatalities caused by being caught in running equipment or machinery were down 26% (76 in 2017 from 103 in 2016)
  • Crane-related workplace fatalities fell to their lowest level ever recorded, 33 deaths in 2017
The transportation and material moving occupational group, and the construction and extraction occupational group accounted for 47% of worker deaths in 2017. Within the occupational subgroup of driver/sales workers and truck drivers, heavy and tractor-trailer truck drivers had the largest number of fatal occupational injuries with 840. This represented the highest value for heavy and tractor-trailer truck drivers since the occupational series began in 2003. Fishers and related fishing workers and logging workers had the highest published rates of fatal injury in 2017.

  • Grounds maintenance workers (including first-line supervisors) incurred 244 fatalities in 2017. This was the second-highest total since 2003. Of these numbers, a total of 36 deaths were due to falls from trees, and another 35 were due to being struck by a falling tree or branch.
  • There were 258 fatalities among farmers, ranchers, and other agricultural managers in 2017. Approximately 63% of these farmers were age 65 and over (162) with 48 being age 80 or over. Of the 258 deaths, 103 involved a farm tractor.
  • Police and sheriff’s patrol officers incurred 95 fatal occupational injuries in 2017, fewer than the 108 fatalities in 2016.
  • The Top 5 states where employees died during 2017 while at work were: Texas (534), California (376), New York (313), Florida (299) and North Carolina (183). In 2017 in Alabama 83 employees died at work, down from 100 in 2016.

Common Sense Counsel: The type of work you do, the State you work in, your employer’s commitment to safety, whether you are impaired at work on Marijuana, Opioids or any other legal or illegal substance, all can cause a fatally bad day. Time for employers to ramp up their drug free workplace programs, get OSHA safety training completed, double check all your safety equipment/guards and get your safety incentives ready to encourage safer behavior. Remember, be safe and send them home Alive!

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL. He can be contacted at or 334-246-2901. 

Friday, December 21, 2018

CBD Oil Creating Employer Dilemma Part 2

Earlier this year the FDA approved the drug Epidiolex cannabidiol (CBD) to treat seizures in people with Lennox-Gastaut syndrome and Dravet syndrome. On December 20, 2018 President Trump signed the Farm Bill; his signing of the Bill legalized hemp — a variety of cannabis that is claimed not produce the psychoactive component of marijuana — paving the way to legitimacy for an agricultural sector that has been operating on the fringe of the law.

You ask what in the world do these two events have to do with CBD Oil or workplace drug testing? First, the Drug Enforcement Administration (DEA) has subsequently rescheduled Epidiolex as a Schedule V chemical on the Federal Controlled Substances Act. Keep in mind that CBD oil (which appears to be broadly used) is still a Schedule I illegal drug. The only FDA approved use of Epidiolex is in children with serious seizures. However, like all other drugs it can be prescribed and used off-label. Buried in the 1000-page Farm Bill is a provision allowing the cultivation of industrial hemp, a close cousin of marijuana, from which CBD Oil may be extracted. More later about both highly significant developments.

The Employer Dilemma

The Employer Dilemma is that claimed CBD Oil use is beginning to crop up as an employee excuse for a positive marijuana/THC test. This naturally occurring compound is extracted from the marijuana plant, or its close relative hemp, both of which will test positive for THC above cutoff levels if taken in significantly high dosage. Some report that CBD appears to act as an anti—inflammatory, which means it could relieve pain from arthritis, but it also has an effect on brain chemistry, as do all cannabinoids, including marijuana.

Thousands of CBD products, oils, tinctures, pills, liquids used in vaping devices, are now widely available in retail stores and online. The CBD market is exploding and expected to multiply sevenfold by 2021 to $2.15 billion, but there are currently no uniform standards or widely accepted testing certifications. States are approving CBD oil to treat disabling conditions based on anecdotal reports and not hard science. Much the same has occurred in states passing medical marijuana laws. To become a medical marijuana card holder, a person must be suffering from one of a multitude of impairments or disabling conditions that allow for a medical professional to recommend the use of medical marijuana. Of course, all such conditions would in all also likelihood fall under the state and federal Americans with Disabilities protections. Therefore, presentation of a medical marijuana card, issued to a disabled medical marijuana card holder, becomes the presentation of a disability card. For which the employer may have the duty to at the very least engage in an interactive process. It all becomes very complicated.

Is CBD Oil Still Illegal?

While, as of the date of this article, CBD remains on the DEA Schedule I list, it has been decriminalized in 47 states. It is reported that a number of lawsuits have been filed against manufactures of CBD oil from customers who relied on the labeling that the product contained only trace amounts of THC, or none at all, but they still tested positive for THC. What has further exasperated the confusion is the passing of the Farm Bill by both houses of Congress last Tuesday, and President Trump signing it into law on December 20, 2018.

To back up for a minute, the federal government classifies marijuana as an illegal drug, while Hemp has a separate and complicated legal status based on the fact that it can be a crop raised for various farming applications. The DEA currently classifies anything from the marijuana plant, including both THC and CBD, a Schedule 1 substances, meaning that the agency says they have no new known medical use and are addictive. 

Back to the Farm Bill, or now law, in its rambling 1000+ pages, is a provision that would make it easier for farmers to legally grow hemp. The final version of the bill places industrial hemp — which is defined as a cannabis plant with under 0.3% of tetrahydrocannabinol, or THC — under the supervision of the Agriculture Department and removes CBD from the purview of the Controlled Substances Act, which covers marijuana. The law also “explicitly” preserved the Food and Drug Administration’s authority to regulate products containing cannabis, or cannabis-derived compounds.

One goal of the Farm Bill was to loosen restrictions to enable companies to sell products made with hemp – soaps and cosmetics from hemp oil, as well as rope and fabric from its fibers. This will also allow hemp farmers and CBD manufacturers to use banks, get insurance, and raise capital investment without getting spooked. The summary of the Bill states that it will: “legalize industrial hemp and make hemp producers eligible for the federal crop insurance program.”

Even though the president has now signed the Farm Bill into law, it could be some time before the legal dust settles. The next action will in all likelihood be action by the DEA. But clearly, the take away message is: employers need to be preparing now for how to deal with the CBD oil dilemma!

What about Federally Mandated Drug Testing?

With regards to Federally Mandated Drug Testing, Medical Review Officers (MROs) must follow the current DOT rules and HHS Mandatory guidelines which mandate that medical marijuana and CBD products that cause a donor to test above the DOT urine cut-off for THC, must be reported as a positive drug test. Expect some new regulatory guidance from the DOT on CBD oil.

What about non-regulated workplace drug testing and CBD oil?
In respect to non-regulated workplace drug testing and CBD oil, most employers do not address the issue in their drug testing policy. Over a dozen states have authorized various formulas of CBD for a variety of medical conditions. The latest guidance on this issue came from the American Association of Medical Review Officers (AAMRO), a medical review officer training and certification organization. Their November 26, 2018 guidance to MROs nationwide on CBD was as follows: “In a private employer drug-testing environment, an MRO with a positive THC and a donor's claim of using CBD oil, the MRO should consult with the employer. CBD oil is still a Schedule I compound, but state law and the employer should be considered. In the absence of any employer policy or guidance, the "AS IS" approach outlined above is recommended.”

The “AS IS” approach mentioned is for the MRO to forward the positive laboratory report for THC and let the employer figure it out.

This is what an MRO interview might sound like as recounted off the Quest Diagnostic Website
u  “So… will I pass a drug test?  Maybe.” CBD itself would not report positive for marijuana or marijuana metabolite. If the CBD product contains THC at a sufficiently high concentration, it is possible, depending on usage patterns, that the use of these products could cause a positive urine drug test result for marijuana metabolites. For example, in some states, CBD may contain up to 5% THC
u  Drug testing- set cutoff level for a positive test at > 50 ng/mL. When a test is positive, it gets screened again with a confirmatory GC/MS or LC/MS test, which have cutoff levels of 15 ng/mL and is specific only to the THC metabolite
u  In order for CBD, or cannabinoid-rich hemp oil products to test positive on a drug test, an individual would have to be using unusually large amounts (above 1000-2000 mg) of the product
u  Due to the fact that it remains an unregulated drug, some CBD oils have as much as 1/10th the THC concentration as marijuana. Therefore, consuming high quantities of CBD oil will leave enough THC in your system to trigger a positive test result and cause impairment
u  Employers need to ensure their company’s substance abuse policy language clearly reflects their position on marijuana and the use of CBD products

Common Sense Counsel: So how does an employer form its compliant legal strategy to effectively stand firm when dealing with medical marijuana anti-discrimination claims, CBD oil, prescription opiates and impairing substances in the workplace – while at the same time, reducing the risk of administrative claims and/or litigation? Following these six tips will help reduce your legal risks:

1.      Update Job Descriptions to include “safety sensitive position” and the ability to work in a constant state of alertness and safe manner as an essential job function;
2.      Update drug free workplace policies to bring them into compliance with state laws and to include a pre-duty impairing effects disclose safety policy for safety sensitive employees and notice of how medical marijuana cardholders may make a reasonable accommodation request;
3.      Treat all impairing effect prescription medications and substance equally as a safety risk to reduce the risk of medical marijuana anti-discrimination claims;
4.      Notify employees in your policy that the claimed use of CBD oil shall not be considered a medical excuse for a positive marijuana test;
5.      Train hiring personnel, and supervisors, to engage in the interactive process when dealing with cardholders in the 15 medical marijuana anti-discrimination states;
6.      Obtain a written fitness for duty opinion from an Occupational/MRO Physician before you take adverse employment action against a medical marijuana cardholder in one of the 15 medical marijuana anti-discrimination states.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL and West Point, GA can be contacted at or 334-246-2901.

Tommy Eden's law practice is principally in the areas of Management Labor and Employment Law; he concentrates in Drug Testing Law (DOT Regulated and Non-Regulated) throughout the United States; Preparation of  Drug Free Workplace Policies in all 50 states  which specifically deal with medical and recreational marijuana issues, recent cardholder protection cases and opioids in the workplace; Tommy is a frequent speaker and trainer on these subjects and heads up Constangy’s Workplace Drug & Alcohol Testing Group.

"No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers."