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Tuesday, June 25, 2019

Is Alabama Ready for "Ban the Box"




Colorado has become the latest jurisdiction to join the “ban the box” movement. The Colorado Chance to Compete Act, signed into law by Gov. Jared Polis (D) on May 28, will take effect September 1, 2019 for employers with 11 or more employees. It will apply to all employers, regardless of size, on September 1, 2021.

Image result for ban the box
The Act, which aims to give applicants with criminal records a more meaningful chance to compete for jobs, limits an employer’s ability to ask about criminal history at the application stage and also limits statements about criminal history on job applications and advertisements. Key provisions of the Act “Criminal history” is defined in the Act as “the record of arrests, charges, pleas, or convictions for any misdemeanor or felony at the federal, state or local level.” Specifically, under the Act: 

  • Employers may not state that a person with a criminal history may not apply for a position in an advertisement for employment or on any application, and 
  • Employers may not ask about an applicant’s criminal history on the initial application. However, employers may obtain publicly available criminal background reports of an applicant at any time.

The above-described prohibitions do not apply if: 
  • A federal, state, or local law or regulation prohibits employing a person with a specific criminal history in the position being offered or advertised, or 
  • The employer has designated the position to participate in a government program to encourage the employment of individuals with criminal histories, or 
  • The employer is required by law or regulation to conduct a criminal history check for the position.
  • The Act does not apply to state or local governments, or to quasi-governmental entities or political subdivisions of the state. 


The Act does not confer a private right of action or create a protected class. If an employer violates the Act, the affected individual may file a complaint with the state Colorado Department of Labor and Employment within a year of the claimed violation. If the Department finds that the complaint has merit, the employer will be directed to comply within 30 days. 

Other penalties, which are in addition to the order, vary depending on the number of violations by the employer. For a first violation, the employer receives a warning. For a second violation, the employer may be assessed up to $1,000. For a third or subsequent violations, the employer may be assessed up to $2,500. 

Employers with 11 or more employees in the state of Colorado should immediately review and, if necessary, revise their application forms and job advertisements to comply with the new legal requirements. In the context of criminal background information, the U.S. Equal Employment Opportunity Commission says that it is not unusual for such policies to result in the disproportionate exclusion of African-American or Hispanic males. It is a defense to a disparate impact claim if the employer can show that the requirement was justified by business necessity, but the plaintiff can still prevail if he or she can show that there were effective alternatives that would have lessened the disparate impact. 

Common Sense Counsel: If one of the solutions to overcrowded Alabama Prisons is an Alabama Blue Print to Getting Talent Back to Work (OA News May 5, 2019), then securing ex-offenders good paying skilled jobs in the private sector can help accomplish that goal. However, there may need to be consideration for Alabama employer’s application and hiring process to be modified much like Colorado has done. Maybe even make it part of the Alabama Corrections Reforms discussions. 

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL and can be contacted at teden@constangy.com or 334-246-2901. He thanks Jessica Tsuda of Denver Office for her Constangy Blog Post on the subject. 

Friday, May 3, 2019

Alabama Blue Print to Getting Talent Back to Work


The Labor Shortage and Untapped Supply Chain - an Alabama Solution

Following the nationwide trend, there is a labor shortage in the State of Alabama and in as much an emergent window of opportunity.  Comparable to many other states, the State of Alabama, in the aggregate, is at full-employment.  In fact, despite more rural regions of the state experiencing double digit unemployment rates, there are other regions that are projected to soon reach negative employment.  What if this issue was tackled vertically and could result in an Alabama Solution not only Alabama’s labor shortage, but also favorably respond to a multitude of societal crisis in Alabama? Does this seem too good to be true?  The real answer lies in the fact that underutilized talent pools exist in Alabama and they span across several populations of viable and job ready workers. There are two primary questions to consider:
  • How can the State of Alabama address the crisis in the Department of Corrections with overcrowding, mounting suicide levels, and ex-con unemployment?
  • Can there be a solution that the State of Alabama can implement that can confront both the critical shortage of skilled labor (and non-skilled labor) in an era of economic boom and as it continues to recruit new industries, and while expanding other industries, all while unemployment rates plunge to historic lows?

Recently, the United States Justice Department found that “Alabama prisons are so dangerous [due to overcrowding and growing suicide rates] that there is reasonable cause to believe that the State is in violation of the U.S. Constitution.”  Similarly, on May 4, 2019, a Montgomery Federal Judge issued a 210-page ruling ordering a number of sweeping directives and notably expressing doubt at the Alabama Department of Corrections ability to enforce its own policies after 15 male prisoners died by suicide in a 15-month period of time in 2018 and 2019. The irony is that the prisons are filled with re-offenders who in many cases due to lack of ability to find work re-offend to provide for themselves and their families, or because of a drug addiction which they cannot afford treatment because they are jobless.  It becomes a vicious cycle, yet actionable steps could be taken to break this chain. 

Why is this segment of unemployed ex-convicts not more actively pursued to fill job vacancies that many argue are impossible to fill?  While this opportunity is broad-based, the cornerstone of this article will unpack the dilemma of mass numbers of unemployed ex-convicts in the State of Alabama who have paid their debt to society, yet face such strict scrutiny in the employment process, including intensive background checks that surface their past, and result in their exclusion from being even considered by employers that so desperately could use their knowledge, skills, and abilities.  

National Second Chance Survey Results

In a recently conducted survey, the Society of Human Resource Management (SHRM) focused on human resource practitioner perception of employing individuals with criminal records.  Funded by the Charles Koch Institute, the Second Chance Survey findings revealed 74 percent of managers and 84 percent of HR professionals nationwide said they were willing or amenable to the idea of hiring individuals with a criminal record. In fact, only a small minority were unwilling to make the hire or work alongside these individuals.

In January 2019, SHRM announced its GettingTalentBackToWork Pledge initiative in which businesses are committing to give the same opportunity to qualified applicants with a criminal background as they do to those who do not. As of March 2019, more than 700 companies, associations and nonprofits had taken the pledge.  At a time when the national unemployment rate is 3.8%, SHRM purports that nationally more than 7.8 million jobs need to be filled by 2020. With 650,000 people being released from jail and prison every year, the time is ripe for employers to be more open to those with a criminal history.

Keys to Re-entry to Reduce Recidivism

Numerous re-entry studies have shown that the key to reducing recidivism, and improving public safety, is properly preparing the offenders for release into a free society and helping them locate a well-paying job. This includes (1) the selection of offenders who are truly motivated to make a change for good; (2) upgrading their educational skills and industrial certificates to deliver what business and industry are searching for; (3) sharing with offenders, pre-release while inside of prison walls, certain coping, dispute resolution, and critical thinking skills so that they can be successful in a free society; (4) upon re-entry helping them with critical bridging infrastructure of housing, transportation, and pro-social faces and places often found within relationships in the faith-based community; (5) access to empathetic and resourceful mentors upon re-entry; (6) drug treatment and strict drug testing accountability plans; and (7) most importantly, finding the ex-offender stable well-paying employment with employers who have taken the Second Chance GettingTalentBackToWork Pledge.

Alabama Success Story

In the State of Alabama there have been limited organized employer efforts to reemploy offenders.  However, the West Alabama Works Prisoner Re-Entry Ready to Work Initiative at Bibb Correctional offers great promise in its collaboration with the non-profit LifeLink CORE, the Alabama Department of Corrections, the Tuscaloosa Chamber of Commerce, Shelton State Community College, Church of the Highlands and multiple businesses and industry in West Alabama area who currently hiring ex-offenders who graduate the two-year certified program.

Tuscaloosa Chamber of Commerce website link to Press Release:

Links to LifeLink CORE videos:



Business executives, HR professionals, and other employees can help break these individuals out of this cycle by considering this source of untapped talent for open roles and encouraging others to do the same. At its meeting on May 2, 2019, the Board of Directors of the East Alabama Chapter of the Society of Resources Managers took the national SHRM GettingTalentBackToWork Pledge and will make the entire GettingTalentBackToWork Toolkit of forms and guidance available to all of its members and all employers in the East Alabama Community.  There is clearly a systematic process to protect employers, while still giving a fair and unbiased opportunity for those with a criminal background to enjoy the freedom to work.

Alabama Small Business Works to Provide Corrections Solution

In Georgia, UnicusID’s Shepherd System, with its offices located in Auburn Research Park located on the Auburn University campus, is offering a Corrections is currently being used in judicial diversion (as an alternative to jail) allowing a judge to release an offender under supervision while being able to biometrically authenticate the offender’s identification and location, set "no-go zones," allow the victim third-party access to the offenders location, and determine the offender's compliance with the judge's order, all from the comfort of a computer screen or mobile device. Company founder Patrick Taylor described the Shepherd System as “a technology revolution in evidence-based offender re-entry programs, and court supervised release, with unlimited future functional upgrades to the Shepherd System as mobile device technology continues to advance. The UnicusID Shepherd System allows for a true collaboration of judges, correction officers, the faith-based community, nonprofits, industrial partners and trainers, educators, and drug testing and treatment providers, to holistically support the ex-offenders who are motivated to change and willing to demonstrate to all stakeholders that they can be trusted.”

Giving Ex–Offenders a Second Chance Opportunity is Right for Alabama Business

On March 28, 2019, Governor Kay Ivey issued a Proclamation which designated April 2019 as Second Chance Month, “to increasing public awareness about the need for closure for those who have paid their debt, and opportunities for individuals, employers, congregations and communities to extend second chance.”

In Closing - Alabama’s Collaborative Opportunity

This article has comprehensively laid out a workable solution to the current corrections and workforce development crisis, which brings together Alabama State Government, industrial trainers and educators, institutions of higher education, faith and nonprofit communities, and emerging technology to collaboratively solve two of Alabama’s most critical emergencies:  1) the evolving labor shortage, and 2) the Alabama Department of Corrections crisis.  There is an existing opportunity and the timing is right through such a collaborative model linked through emerging technology.  The labor shortage problem is clear, but the critical path lies in the concerted and intentional focus on returning ex-convicts to work, where possible.  With these aforementioned described approaches, organizations have the opportunity to utilize this population of workers to solve not only their labor shortage, but enable this group to make important contributions to productivity and high impact deliverables in the workplace, as well as create a better quality of life for themselves and their families.  It’s time for Alabama to explore how to safely Get Its Talent (that is currently behind bars) Back to Work.


Tommy Eden is a management labor attorney with the law firm of Constangy, Brooks, Smith & Prophete, LLP, in Opelika, AL, and serves in the correctional ministry of The Church of the Highlands. He also serves on the Board of Directors of the East Alabama Society of Human Resources Managers (EASHRM) Chapter, and is outside Counsel to UnicusID.

Tuesday, April 2, 2019

How Not to Terminate




March 1, 2019: The Supreme Court of Alabama affirmed a $1.26 million retaliatory discharge verdict consisting of $314,862.88 in compensatory damages and $944,588.64 in punitive damages in Rice v. Merchants FoodService. Denny Rice was one of eight drivers delivering food to the Mobile County School System when he suffered an on-the-job injury that forced him out of work for almost six months. Upon returning to work from workers’ compensation leave, Rice was immediately terminated and told his position had been filled while he was on leave, so no work was available.
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Rice testified at trial that he was devastated by the termination and feared and anguished over how he would be able to cope financially without a job. He testified that he postponed a planned wedding, withdrew $20,000 from his 401(k) and applied for and took a commercial driving test in order to enhance his commercial drivers’ license. He eventually found a position with a trucking company where his annual salary slightly exceeded his former salary, but only because he was forced to work over 900 hours more per year. At trial Rice requested damages for mental anguish and emotional distress and for his lost wages between his termination and locating his new job. He also requested “front pay” damages, which is his lost future earnings until he turned 65, based on the difference in pay between his old job and new job. At trial, Merchants FoodService argued that such front pay damages were not recoverable since he made more money at his new job than he did at his old job. The Mobile County trial judge allowed the claim to proceed to the jury as a fact question, however, because his new job paid more on annual basis only because Rice was forced to work over 900 more hours per year.

On appeal, Merchants FoodService actually conceded liability on the retaliatory discharge claim and contested only the amount of compensatory and punitive damages awarded. The termination clearly violated its personnel manual which required the company to attempt to find another position for the employee returning from workers’ comp leave. In addition, there was evidence the employer was in the midst of an operational expansion at the time and a job opening for a similar position was posted only 11 days after the termination. During trial, Rice presented evidence from another employee who was also terminated on the day he returned from workers’ comp leave as well as an internal company email that acknowledged that the termination of Plaintiff was improper (“this one will probably come back to bite us, so stay tuned”).

Common Sense Counsel: This case appears to be an outlier of “how not to terminate” an employee who has taken work comp leave. It should also serve as a strong reminder to Alabama employers to take great care in understanding and complying with its own employment manual and established company policies when an injured employee returns from a workplace injury. Prior to terminating an employee who has recently returned from work comp leave it is advisable that employers review their personnel manuals and contact trusted legal counsel before terminating the employee.

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

Monday, March 25, 2019

Don’t Trust Anyone in IT- Check it Out First

Elizabeth Frankhouser was the Executive Director of the Clearfield County Career & Technical Center. Frankhouser had a personal Dropbox account, which she used sometimes for business and sometimes for pleasure.  What happens on Dropbox stays on Dropbox . . . unless your IT guy hates you and has your password. According to Frankhouser, she never accessed the "personal" material in her Dropbox account from the Career Center and never downloaded it to her work computer. While she was at work and on the Center's systems, she used Dropbox strictly for business.

Shortly after she was hired in 2015, Frankhouser's supervisor allegedly began sexually harassing her. Frankhouser refused his advances and complained to his boss.  He then began making things difficult for Frankhouser at work, as she alleged in her federal court lawsuit.

At some point in 2016 or 2017, Frankhouser's computer started malfunctioning, and the IT administrator removed and replaced her old hard drive. Among other things, Frankhouser had all of her passwords stored on an Excel spreadsheet on her Career Center computer. After changing out her hard drives, the IT administrator allegedly took the old hard drive home and Frankhouser's "password" spreadsheet, allegedly logged into her Dropbox account using her log-in information, and found two "explicit" pictures of Frankhouser's boyfriend and some compromising pictures of Frankhouser at a party. The IT guy allegedly printed hard copies of the pictures and gave them to others at the Center and spread vicious untrue rumors about what else he found on her hard drive. Frankhouser was then terminated by the Center for allegedly having dirty pictures on her Career Center computer. 

Frankhouser then sued for violation of her rights under the Fourth Amendment to the U.S. Constitution (the Career Center is a public-sector employer) and for invasion of privacy under the common law of Pennsylvania. The Career Center and the individual defendants filed a motion to dismiss the "cyber-claims." This week the federal judge allowed some of the claims in the lawsuit, including the "cyber-claims," to go forward. This is what the judge said about the cyber-claims in a nutshell: the Center policy against improper use of Center computers did apply to an employee's private cloud account or material that had never been accessed through the employer's system. Based on the allegations in the lawsuit, Frankhouser absolutely did have a reasonable expectation of privacy with respect to her personal Dropbox material. It was her own private account, it was password-protected, and Frankhouser had never accessed the pictures while on the Career Center system or downloaded them. The fact that she sometimes used Dropbox for work did not mean that she lost the right to keep her personal Dropbox stuff private.

Common Sense Counsel: Employers Don't Overreach. If you have a good internet usage policy, you should have the right to monitor employees' emails in your system, as well as their online activities while on your system. But that doesn't mean you have the right to go "fishing" in employees' private accounts. Make sure you really know the facts before you make an adverse employment decision you'll regret in cyber technologies.


Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL and can be contacted at teden@constangy.com or 334-246-2901. He thanks Robin Shea for her Constangy Blog Post on the subject. Link to case at www.alabamaatwork.com

Friday, March 8, 2019

Proposed Salary Threshold Overtime Regulations are Here!

On Thursday, the U.S. Department of Labor released its long-awaited proposed regulations on the executive, administrative, and professional exemptions to the overtime rule under the Fair Labor Standards Act. Read the DOL’s official news release here.

Under the proposal, the salary threshold would increase from the current $455 per week to $679 per week ($35,308 per year). The threshold would also be subject to review and possible adjustment through new rulemaking every four years. Under regulations issued by the Obama Administration but blocked by a court, the threshold would have jumped to $913 per week, or $47,476 per year, and tied to costs of living thereafter.
The DOL has stated that proposed regulations would not change the "duties tests." Public comments will be accepted for 60 days after the proposed rule is published in the Federal Register, presumably early next week. The Final Regulation will become effective January 1, 2020

Common Sense Counsel: Constangy, Brooks, Smith & Prophete, LLP, will hold webinars on the new Final Rule and will issue follow-up bulletins as we continue to analyze the Rule. The key decision for Human Resources departments and management is whether to raise the salaries of currently exempt employees to $679 per week ($35,308), or to reclassify those employees to non-exempt status. If you are going to reclassify, you will need to determine the regular rate of pay for these employees in order to determine the proper overtime rate. This will require careful planning and consideration of a number of issues, not the least of which is how many hours of overtime are expected to be worked each week by the involved employee.

The East Alabama Society of Human Resources (EASHRM) will hold a briefing workshop soon.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL 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 with Links to regulations on Blog. Send an email to eandrews@constangy.com if you wish to be placed on the free Constangy newsletter and webinar list.

Thursday, February 21, 2019

Positive Marijuana Test in Arizona Does Not Mean Impairment

Carole Whitmire, a store cashier at a Wal-Mart in Slow Low, Arizona who was also the holder of a State of Arizona medical marijuana card, hurt her wrist at work and was drug tested as part of her post accident medical examination. She tested positive for marijuana metabolites.

Walmart's policy provided for termination of employees who tested positive for illegal drugs. Ms. Whitmire was first suspended without pay and then terminated based on her positive test result. She sued Walmart in Federal District Court under the Arizona Medical Marijuana Act, which generally prohibits discrimination against employees who use medical marijuana, but allows employers to take action against employees, even if they're medical marijuana users, if they're "under the influence" while at work.

However, the Arizona Medical Marijuana Act says that "a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment."

In other words, an employer in Arizona can't terminate the holder of a medical marijuana card based solely on a drug test, unless the result indicates that the employee was impaired at work. The Act has two defenses for employers. It's legal for an employer to take action against the employee (1) if the test result indicates that the employer had a good-faith basis for believing the employee was actually impaired while at work, or (2) if the employer is subject to other legal requirements, such as U.S. Department of Transportation regulations.

Walmart claimed that it should win the lawsuit because, among other reasons, it believed in good faith that Ms. Whitmire was impaired while at work on the day of her drug test. According to a declaration (a sworn statement similar to an affidavit) provided by a company personnel coordinator, Ms. Whitmire's level of marijuana metabolites was in the highest range that the test registers, and the personnel coordinator said under oath that she believed an employee with that level would be impaired while at work, according to the Judge’s Order.

The court ruled that the opinion of a Human Resources professional on scientific matters such as these wasn't good enough. To have a good-faith belief based only on a drug test result, the court said in its Order, Walmart should have presented evidence from an expert with an appropriate scientific background -- perhaps an M.D., or a scientist with the drug testing laboratory. The personnel coordinator didn't provide any "foundation" apart from the test result to support her good-faith belief that the plaintiff was impaired while at work. This means Ms. Whitmire wins without even having to go to trial. The only issue left to be resolved is how much she is awarded.

Common Sense Counsel: Presumably, the court would accept testimony from a lay witness about reasonable suspicion observations -- for example, that an employee had dilated pupils, smelled like marijuana, and was stumbling around the workplace on the day in question. But, in this case, Walmart did not put Ms. Whitmire's workplace behavior at issue. Walmart had the burden of proof on the good-faith defense, and the court ruled that the sworn testimony of the personnel coordinator did not satisfy the burden. Accordingly, the court -- on its own, without a request from Ms. Whitmire -- granted summary judgment to Ms. Whitmire.

So, employers beware. If you operate in a state that has legal protections for medical marijuana users, and the number of such states is constantly growing, consult with your employment counsel before you take action against a medical marijuana card holder who tests positive for marijuana. In some states, you may even have a duty under state disability discrimination law to consider reasonable accommodations. Also, make sure your drug testing policy does not go up in smoke.

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 teden@constangy.com or 334-246-2901. Link to case at www.alabamaatwork.com. Tommy’s Law Partner Robin Shea posted much of this on her Constangy blog last week.

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 teden@constangy.com or 334-246-2901. Link to case at www.alabamaatwork.com