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Friday, January 12, 2018

EMPLOYERS BEWARE, AND BE READY: How to prepare for an ICE raid

On Wednesday morning, officials from U.S. Immigration and Customs Enforcement inspected nearly 100 7-Eleven stores across the country, and arrested 21 employees for being illegally present in the United States. This is believed to be the Trump Administration’s largest immigration enforcement operation against an individual employer to date. The 7-Eleven raids and others are consistent with the Trump Administration’s announcement last October of its intention to increase significantly enforcement of the immigration laws in workplaces.

This week’s raids bring back memories of a March 6, 2007, ICE raid at Michael Bianco, Inc., a leather factory and government contractor in New Bedford, Massachusetts. As a result of that raid, 361 illegal workers were arrested and some were detained at a facility in Texas. Michael Bianco, the owner of the company, was sentenced to 12 months and a day in federal prison, plus three years of supervised release. He was also required to pay a $30,000 fine for helping to harbor and conceal illegal immigrants.

This new policy of arrests and enforcement has produced results. There were nearly 30,000 more non-border ICE arrests during the first fiscal year of Trump's term, which ended on September 30, 2017, than during all of fiscal year 2016.

Common Sense Counsel: What does this new Trump policy mean for employers? For violations a civil penalties could reach $21,563 for each person illegally employed; and for violations of simple recordkeeping, civil penalties could reach $2,156 for each I-9 Form containing substantive violations or uncorrected technical violations. The best strategy for employers is to have their house in order before ICE shows up unexpectedly. The following steps are recommended:

1) Conduct periodic self-audits of your I-9s and practices, and review any deficiencies or corrective action with immigration counsel. Particular attention should be given to cases where concerns are raised about the legal status of the employee despite the I-9 documents presented by the employee.
2) Prepare yourself by having a procedure to follow if and when ICE agents arrive. The front desk personnel need to be trained about who is to be contacted, and they should know not to provide any other information to ICE. The employer’s procedure also should include who is to be the employer’s lead contact with ICE.
3) Know where your I-9s are maintained. Although employers have three business days to provide the I-9s, that time can pass quickly if the documents cannot be located or if the I-9s are in an off-site location.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, and can be contacted at or 334-246-2901. Will Krasnow in the Constangy Boston office drafted this excellent update. Blog at

Thursday, January 4, 2018

Who Is Your CEO?

I want to highly recommend to my readers The Energy Bus by Jon Gordon, a book told as a business parable from the perspective of a manager (George) who is leading a team heading nowhere. His car breaks down so for two weeks he ends up riding a city bus with a positive motivation guru at the wheel and a group of “energy” converts as passengers. Over the two weeks as George rides the bus he learns lessons designed to help a leader transform a team by creating a positive vision and culture of energy. George is able to save his job and inspires his team by becoming its Chief Energy Officer (CEO) using these 10 Rules for approaching life and work with the kind of positive, forward thinking that leads to true accomplishment!

Rule #1 “You’re the driver of your bus.” It’s all about personal responsibility. We are each responsible for the direction of our lives. And the direction of our lives is shaped by each day, each thought. If we are complacent in our lives we let others drive for us.
Rule #2 “Desire, Vision, and Focus Move Your Bus in the Right Direction.” You have to have a vision, have a compelling reason to keep you moving and the persistence to keep to it.
Rule #3 “Fuel Your Ride with Positive Energy.” Positive energy is the fuel that allows you to overcome the obstacles. Positive energy is high octane fuel and negative energy is gas from the bottom of last years can.
Rule #4 “Invite People on Your Bus and Share Your Vision for the Road Ahead.” Associating with people who push you forward is one of the smartest things you can do. If the people you work with or associate with are stagnant, then you need to break free.
Rule #5 “Don’t waste your energy on those who do not get on the bus.” Do not take it personally, maybe they are meant to get on another bus.
Rule #6 “Post a sign that says no Energy Vampires allowed on your bus.” Let them know who ever is negative will be kicked off the bus or left at the station.
Rule #7 “Enthusiasm Attracts More Passengers and Energizes Them During the Ride.” In college sports it seems that the same teams are at or near the top year after year. Players recognize a good culture and want to be a part of it. The same can be said of work teams and companies. It’s not all about the money.
Rule #8 “Love Your Passengers.” You can’t fake it. In order to lead people or attract people to your cause you have to care for them. Love cannot be selfish. As a leader you must want the best for your team members. Back to sports: time and time again you see a team of superior athletes being beat by a team made up of individuals who would do anything for their team and teammates. The key is to cultivate that love with positive energy.
Rule #9 “Drive with Purpose.” Purpose is the ultimate fuel for our journey through life.
Rule #10 “Have Fun and Enjoy the Ride.” No one goes through life untested and the answer to these tests is positive energy, the kind of positive energy consisting of vision, trust, optimism, enthusiasm, purpose, and spirit that defines great leaders and their teams.
Common Sense Counsel: Ken Blanchard said it best in the forward to the book, "If you want to fuel your family, your career, your team, and your organization with spirit, read this book. Jon’s energy and advice will leap off the page and help you cultivate positive energy in everything you do and you will make the world a better place for your having been here.” Co-author of The One Minute Manager®; book endorsed by Dabo Swinney, Head Coach, Clemson University Football Team, Mark Richt, Head Coach, University of Miami Football Team, Mike Smith, Head Coach, The Atlanta Falcons, Doc Rivers, Head Coach, Boston Celtics and many others in business and industry. The Energy Bus is the perfect mandatory team read book for 2018!

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, and can be contacted at or 334-246-2901. Blog at Link to The Energy Bus Website

Tuesday, January 2, 2018

7 Leadership Lessons for 2018

Tomorrow is January 1, 2018, and you have the chance to reinvent yourself and your workplace to Make a Difference for Good.  Change is coming at an accelerated pace with over 25 industries going the way of the buggy whip manufacturers.  Leadership Lessons:

1)  Use Practical Wisdom - The Right Way to Do the Right Thing. That means to encourage individuals to focus on their own personal intelligence and integrity rather than simply navigating the rules and incentives established by others.
2)   Realize that every employee has a story. You never will know their story if you do not take time to ask and breaking bread many times helps break the ice. Working side by side is a great way to hear the employee’s story and until they believe you care you will learn very little. Listening is a learned trait of highly effective emotionally intelligent leaders.
3)   You will never know what needs fixing/changing/pivoting until you ask. The lesson that Goggle learned in Project Aristotle was that using engagement survey data allows you to learn what 5 characteristics make a great team that daily yields world changing results.  Artificial intelligence will invade most facets our business life in 2018, but the most important asset you will have access to is the collective creativity hidden in the brains of your employees. Some call it magic dust - to others it is discretionary effort.
4)  Saying “thank you” matters. The ability to express genuine appreciation is a top leadership trait. When you see good work - say it, and a handwritten note of appreciation will be kept by an employee for years. Know that unplanned acts of kindness, hospital visit, or unexpected gift card for over the top service make a difference to the morale of the entire team. This is just one trait of the 12 traits of an emotionally intelligent boss.
5)  Google learned in Project Oxygen that Great Bosses display 8 traits.  When Goggle surveyed its work team’s common traits emerged. The most encouraging lesson was that great bosses can be made not bought. Investing in Great Teams and Great Bosses training in 2018 could just be the magic dust you have been missing!
6)   Rewards should be personal. In every episode of Undercover Boss, the executive calls a few special employees to his or her office for an unveiling. At that time, the CEO makes sure to thank employees for their hard work and dedication to the company. The visit to the CEO’s office includes a reward tailored to the individual’s need, a goal they want to achieve, and examples include training and development, help with educational costs, financial needs. 
7)  Chart your course for 2018. A wise captain precisely navigates his course before leaving port. Great bosses set a clear vision, mission and manages by values posted for all to see. Taking time in the next 30 days to bring your entire crew together for this business saving exercise which has the potential to make 2018 your best year ever!

Common Sense Counsel.  Following these 7 Leadership Lessons will mean you won’t be caught with your own over supply of buggy whips in December 2018.

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. Blog at

Monday, December 18, 2017

Transit Employer Hears Alabama Jury’s Message to Do Better

On December 14, 2017, a Jefferson County, Alabama jury awarded $12 million to passengers injured in a 2015 Birmingham-Jefferson County Transit Authority (BJCTA-MAX) bus crash in Fairfield, Alabama; 10 of the 15 victims in the lawsuit were plaintiffs in the case. Of the $12 million verdict, six million was for compensatory damages and six million for punitive damages. The punitive damages will be split equally between each plaintiff. Link to full article

Trial testimony was that: on Monday, February 9, 2015 the MAX driver started to slump over the steering wheel It was like he was having a seizure," the passenger witness said. Once she reached the driver's seat, the driver had fainted and the bus ran over a curb, falling 30-foot on its side into a ravine. The witness hit the floor, and upon impact the bus' wheelchair lift fell on top of her, trapping her leg underneath. The driver then fell on top of her. More than 100 rescue workers worked for two hours rescuing the driver and passengers.

Emergency crews arrived about 10 minutes after the crash, and all of the other 21 people on board were able to crawl out of the bus' windows, but the witness and the driver had to be pulled from the front of the bus. Once she arrived at the hospital, she learned the bones in her foot were so mangled, her leg was going to have to be amputated below the knee. Several of her foot bones were brought to the emergency room in a plastic bag. The witness who lost her leg was an elementary school cook

The trial testimony was that the bus driver had been involved in 14 accidents while driving a MAX bus. The bus driver, who had worked for the BJCTA since 1988, had a medical condition that caused him to faint, and the BJCTA was aware of that issue, was the trial testimony. But there was testimony that MAX had no policies or procedure in place to remove him, or other drivers who were unsafe to be on the road. Trial testimony was that the BJCTA's process involves supervisors on the scene visually evaluating employees when they arrive to work, before giving them a key card that allows them to access the bus, but those supervisors are not informed about the individual drivers' medical history or conditions though, and have no way to ensure they are taking care of their illnesses. In the drivers case, the supervisor had no way of knowing the driver had a history of fainting, nor that he had not taken his medication that day, according to trial testimony.

The lead plaintiff said the jury was most persuaded by the potential for the wreck to be prevented. "The law holds BJCTA to a higher standard than that, and I think the jury held them to a higher standard, tooThere was nothing sudden about this accident. This is the least sudden accidentIt's neglect," the trial attorney argued.

As to what the BJCTA can do to prevent another crash from happening, the attorneys argued they need to have stricter medical qualifications for their drivers. Someone who has a medical condition that causes a loss of consciousness should not be allowed to drive a bus, and should be transferred to another position within the BJCTA, and that the company leaders should familiarize themselves with their drivers' medical history, and make sure those drivers are complying with their careThe BJCTA needs to be challenged to do something... to ensure this does not happen againThe jury's message was, 'we expect better.'"

Common Sense Counsel: MAX as a Federal Transit Authority (FTA) covered employer that is required to have their FTA covered employees submit to a DOT certified medical examiner examination.  The Driver is also covered by the fitness for duty standards set forth in 49 CFR Part 391 and the regulations specifically empower the FTA employer to make the final fitness for duty decision for news and current drivers. FTA employers should seriously consider taking the following steps: 1) take the high ground by requiring a fitness for exam when you first become aware that an driver has a medical condition that raises a safety concern, or taking an impairing effect medication; 2) select an outside medical advisor who is a DOT certified medical examiner, MRO and occupational physician to guide your DOT fitness for duty process; and 3)  when making a conditional job offer to a DOT regulated driver, require the completion of a post offer medical questionnaire to be able to prove you are trying to do better. As a reminder, paste on your wall the jury admonition to MAX WE EXPECT BETTER.

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

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 or 334-246-2901. Blog at

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 or 334-246-2901. Blog at

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 or 334-246-2901. Blog at