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Friday, December 14, 2018

CBD Oil Creating Employer Dilemma


Earlier this year the FDA approved the drug Epidiolex Cannabidiol (CBD) to treat seizures in people with Lennox-Gastaut syndrome and Dravet syndrome. 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. 


While CBD remains on the Schedule I list, it has been decriminalized in 47 states and approved in others for treatment of a spectrum of medical disorders. 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.

With regards to Federally Mandated Drug Testing, MROs must follow the current DOT rules and HHS Mandatory guidelines which mandates that medical marijuana and CBD products which cause a donor to testing above DOT urine cut-off for THC must be reported as a positive drug test.

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 a variety of 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.

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? 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 teden@constangy.com or 334-246-2901.

Friday, December 7, 2018

Men’s #MeToo Claims Avoidance Rules


An article this week in Bloomberg said that men on Wall Street were getting the message about #MeToo. But the message wasn't quite what you might expect. Rather than "Avoid harassment at work," it was "Avoid women at work.” According to the article, "No more dinners with female colleagues. Don’t sit next to them on flights. Book hotel rooms on different floors. Avoid one-on-one meetings." As an employment attorney quoted in the article says, "[T]hose men are going to back out of a sexual harassment complaint and right into a sex discrimination complaint."


Give these Wall Street guys the benefit of the doubt - that they're not sexual harassers, but just terrified of the current legal climate. Since #MeToo really got going a little over a year ago, we have seen some "opportunistic" claims of sexual harassment that have not been supported by the evidence, and I'm sure those -- as well as valid claims -- will continue to increase. These 6 rules may seem extreme for those of us that don't have a seven-figure income, yet they do provide some potential risk-reduction guidelines for men who are concerned about possible "opportunistic claims."  

The following is an attempt to take into account the concerns of the Wall Street guys, while still being EEO respectful:

Rule 1: Don't have one-on-one dinners with colleagues unless you're on a business trip together. Group dinners are fine. That will give you plenty of witnesses. Or of course, there is the Mike Pence rule – "I go nowhere without my Karen." Take your wife along when in doubt.

Rule 2: If you are on the road with a colleague and are having dinner together, do it in a well-lit restaurant with attentive wait staff. Don't go any place dark and "romantic." Don't go any place with a "sexual" theme. Limit your conversation to talk about work and your family (But not about how your spouse doesn't understand you). The attentive and clean-cut wait staff can be your witnesses.

Rule 3: "Don't sit next to women on flights"? Ridiculous! If you're really too paranoid to sit next to your colleague, at least get seats across the aisle from each other so you won't be touching but can still talk. That way, the flight attendants and the strangers in the center and window seats on both sides can be your witnesses.

Rule 4: "Avoid one-on-one meetings"? Good luck with that. You can't really avoid one-on-one meetings, of course, but you can hold them in an office with the door open, at a cubicle, or in a glassed-in conference room.

Rule 5: Don't have one-on-one meetings at your home. Too much opportunity for mischief . . . or false accusations!

Rule 6: Watch your alcohol consumption whenever you're with co-workers. It doesn't mix well with work, whether the "work" is actually getting some work done, putting in your appearance at the office holiday party, or unwinding after a hard day on a business trip. One or two drinks may be all right for most people, but if you must drink more than that, excuse yourself, go to your room, check in with your spouse, and continue your drinking alone.

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 gratefully used parts of Robin Shea’s Constangy Blog.

Friday, November 30, 2018

Harassment Prevention Training Top Priority in 2019


International Paper Company (IPC) in Spartanburg, SC, which manufactures and distributes packaging boxes, hired Tamika Ray in 2002 to work as a “bundler” in its converting department. Beginning in 2003, Ray’s supervisor started acting inappropriately toward her, according to a court opinion, including asking Ray to engage in sexual activity with him and offering to pay her for those acts. The supervisor also allegedly made several overtly sexual comments to Ray, stating that he wished he could “bend her over his desk,” that he would father a child with her, and that he would engage in sexual activity with Ray’s sister-in-law if Ray did not acquiesce to his demands. The supervisor also asked Ray to show him her “cootie,” “cha-cha,” and “monkey,” comments that Ray construed as requests to see her body parts. The supervisor continued this conduct despite Ray’s repeated refusal of his advances and asking him to stop. 

In 2013, several years after her supervisor’s conduct began, Ray finally reported his behavior to two other IPC supervisors. Ray explained that her supervisor would not leave her alone and was ragging her because she would not have sex with him. Although they offered to say something about Ray’s allegations, she declined out of fear of retaliation. 

Under IPC’s anti-harassment policy, when a supervisor is notified of potential harassment or discrimination, the supervisor is required to report that allegation to his manager, to a human resources representative, or to IPC’s legal department. Neither of the other two supervisors formally reported any of Ray’s complaints. 

In early 2014, her supervisor learned that Ray had complained about his conduct. He confronted Ray and asked if she had reported him for sexual harassment. Ray denied making any complaints, and her supervisor informed her that such a report could get him in a lot of trouble. Around the same time, Ray’s supervisor informed her that she could no longer perform voluntary overtime work. Before imposing this restriction, Ray often had arrived four hours before her scheduled shift to perform overtime work, which represented a significant portion of her income.

IPC investigators conducted interviews and learned that the supervisor had told two other employees that he wanted to have sex with Ray. Although the accused supervisor denied ever saying anything sexual to or about Ray, the IPC investigators concluded that he was lying. Nevertheless, IPC did not discipline the supervisor because Ray’s allegations were not corroborated by the statements from other employees.

The U.S. Equal Employment Opportunity Commission backed Ray in Federal Court, saying in an amicus brief that a reasonable jury might find that IPC supervisors weren't properly trained on compliance with the company's anti-harassment policy and also that the company did not enforce its policy reasonably or promptly with respect to Ray. Both elements are critical to an affirmative employer defense.

This week the 4th U.S Circuit Court of Appeals ruled that Ray’s case could go to a jury, finding that IPC’s failure to discipline the supervisor, retaliation by taking away overtime, and lack of adequate and meaningful supervisory harassment training were all highly significant.

Common Sense Counsel: The #MeToo era dictates that employers ramp up harassment prevention policies, training, and investigative compliance to stay out of the EEOC’s crosshairs.

Click here to read the full case: Tamika Ray v International Paper Company 

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. Link to full case at www.alabamaatwork.com

Friday, November 16, 2018

Tip Credit Has New/Old Regulation Helpful Interpretation

Last Thursday while I was attending the ABA Labor & Employment Law Section meeting, the U.S. Department of Labor Wage and Hour Division, issued an advisory opinion letter, FLSA 2018-17, that amends previous guidance regarding the “tip credit provision,” sometimes known as the 80/20 rule. The “tip credit” provision addressed the payment of minimum wage and applies to employees of a business that usually receive at least $30 per month in tips. These “tipped employees” are not required to be paid federal minimum wage (currently $7.25 per hour), but instead, only $2.13 per hour. In 2011, the Department of Labor had issued an opinion rescinding a 2009 opinion and instituting what has colloquially been called the “80/20 rule.” By FLSA 2018-17, the Department of Labor fully reinstated the prior 2009 determination, which will have far reaching consequences for employers of “tipped employees,” in the restaurant industry.


In order to understand this change, it is important to understand the old 80/20 rule. That rule is illustrated by the following example: A server primarily engages in the act of serving customers, or a “tip-producing” occupation. However, the server may engage in other work that does not directly generate tips, often called “side work.” This side work may involve folding napkins, wrapping silverware, cleaning tables, and similar tasks. The 80/20 rule, at its core, mandated that if such “non-tipped” tasks exceed twenty percent (20%) of an employee’s duties, the employer would not be able to use the “tip credit provision,” and could be required to pay the employee minimum wage. This led to numerous claims by employees that an employee’s collateral duties exceed twenty percent of the employee’s working time and demands that an employee be paid full minimum wage. The rule turned into a nightmare for the small business.

Last week’s new guidance from the Department of Labor undoes the 80/20 rule. Now, there will be no limitation on the amount of duties that do not directly produce tips, provided they are related to the tip-producing occupation, and are performed contemporaneously with direct customer service or “tip-producing” duties, which would include folding napkins, wrapping silverware, cleaning tables, and similar tasks.

Note that this would not apply to employees who engage in dual occupations, rather than those who complete some non-tipped work related to an employee’s customer service duties. For instance, the opinion letter cites the example of an employee who performs both duties as a waiter and a maintenance man. The employer is not entitled to take the “tip credit” for the time that the employee works as a maintenance man, because this is not a “tipped” profession. The opinion is limited to work performed that is related to the “tipped” profession. Also, be advised that this determination applies only to federal minimum wage standards. Certain states and localities may have different laws and regulations concerning minimum wage.

Common Sense Counsel: Other than Tipped Employees, there are several FLSA Compensable Time Issues That Can Trip You Up Big Time! The FLSA clearly defines what qualifies as compensable time. Do the following count: Waiting time, On-call time, Rest and meal periods, Sleeping time, Lectures, Meetings and training programs, Travel time, Meal time, after hour emails/text messages?

Problems occur when employers fail to have legally defensible handbook policies, employee sign-offs and notices, and supervisors trained to recognize and count certain hours worked as compensable time. Getting it wrong can be costly.

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

Wednesday, November 7, 2018

U.S. Supreme Court Must Have Read #MeToo Old Column

On November 6, the U.S. Supreme Court handed down its opinion in Mount Lemmon Fire District v. Guido, holding 8-0 that the Age Discrimination in Employment Act of 1967 applies to all state and local governmental employers, regardless of the number of employees. Justice Brett Kavanaugh took no part in the consideration or decision of the case.

According to the Court, Section 630(b) of the ADEA has two separate categories of “employer.” “Employer” means: (1) “a person engaged in an industry affecting commerce who has twenty or more employees . . .” and (2) “a State or political subdivision of a State.” The Court noted that the language “also means” should be read as connoting “in addition to.” Accordingly, the Court ruled that the 20-employee minimum applicable to private sector employers did not apply to state or local governmental employers.

The employer unsuccessfully argued that the ADEA should be interpreted in accordance with Title VII of the Civil Rights Act of 1964, which applies to states and political subdivisions with 15 or more employees. In rejecting the employer’s argument, the Court noted that, when enacted, neither Title VII nor the ADEA applied to state or local governments at all. Congress amended Title VII in 1972, and the ADEA in 1974, to apply to state and local governments, but in doing so, had used different language.

Notably, the 1972 amendments to Title VII did not change the definition of the term “employer” – “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year . . .” Nevertheless, the amendments changed the definitions of “person,” and “industry affecting commerce.” Specifically, Congress changed the Title VII definition of “person” to include “governments, governmental agencies, [and] political subdivisions.” Congress changed the definition of “industry affecting commerce” to “include any governmental industry, business, or activity.” As a result of these two definitional changes, since 1972, all governmental entities are Title VII “employers” if they have 15 or more employees.

The impact of the Court’s decision in Mount Lemmon is expected to be considerable, as state and local governmental employers with fewer than 20 employees are now subject to suit under the ADEA. Although the Eleventh Amendment to the U.S. Constitution will shield state employers of all sizes from private ADEA actions, state employers with fewer than 20 employees (as well as larger state employers) will be subject to age discrimination lawsuits filed by governmental entities such as the Equal Employment Opportunity Commission. Moreover, because Eleventh Amendment immunity does not apply to local governmental entities such as municipalities, counties, and school boards, the Mount Lemmon decision exposes those local governmental employers with fewer than 20 employees to suit under the ADEA from private and governmental plaintiffs alike.


Common Sense Counsel: Read my column from last week on Age Discrimination “Code Words” to avoid, which are being used as direct evidence of age discrimination in employment claims.

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. Tommy’s Jacksonville, FL partner Damon Kitchen heads the Constangy Public Sector Practice Group and drafted this client update.

Friday, October 19, 2018

OSHA Softens on Post-Incident Drug Testing


In May 2016, the Occupational Safety and Health Administration amended 29 CFR §1904.35 to prohibit employers from retaliating against employees for reporting work-related injuries or illnesses. This revision to the recordkeeping regulations became immediately controversial when OSHA interpreted it to limit employers’ use of safety incentive policies and post-incident drug testing. On October 11 OSHA issued a Memorandum to Regional Administrators, which the Agency represents is a clarification of its position on safety incentive policies and post-incident drug testing.

Safety Incentive Policies

OSHA’s May 2016 amendment made it clear that employee safety incentive policies premised on OSHA-recordable cases were suspect because they could have the effect, whether intended or not, of discouraging or deterring employees from reporting work-related injuries or illnesses. OSHA acknowledged at the time that such policies could be well-intended efforts by employers to encourage employees to work safely but stated that there were better ways to accomplish that goal. Rather than tying safety incentives to recordable cases, OSHA suggested rewarding employees who participate in safety-related activities, such as identifying hazards or participating in accident investigations.

In the new Memorandum, OSHA again acknowledges that such policies may be motivated by an employer’s good faith intent to promote safety and health. OSHA emphasizes that rewarding employees for their participation in these types of proactive safety efforts will not violate § 1904.35(b)(1). According to the Memorandum, a safety incentive policy premised on OSHA recordables is not by itself prohibited. Rather, such policies will be considered violations only if they penalize employees for reporting work-related injuries or illnesses, or are implemented in a way that discourages reporting.

Post-Incident Drug Testing

When OSHA amended § 1904.35 in May 2016, some employers had mistakenly believed that the Agency intended to prohibit post-accident drug testing. Although OSHA’s initial guidance raised doubts about what type of drug testing would be permissible, it became clear that OSHA never intended to prohibit post-accident or random drug testing. 

To clarify its position, OSHA lists the following permissible drug testing:
  • Random drug testing.
  •  Drug testing unrelated to the reporting of a work-related injury or illness.
  • Drug testing under a state workers’ compensation law.
  • Drug testing under other federal law, such as U.S. Department of Transportation regulations.
  • Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.  If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

However, in the OSHA guidance issued on October 19 to the general public, OSHA included this warning: “drug testing an employee whose injury could not possibly have been caused by drug use would likely violate section 1904.35(b)(1)(iv). For example, drug testing an employee for reporting a repetitive strain injury would likely not be objectively reasonable because drug use could not have contributed to the injury. And, section 1904.35(b)(1)(iv) prohibits employers from administering a drug test in an unnecessarily punitive manner regardless of whether the employer had a reasonable basis for requiring the test.”

Common Sense Counsel:  Employers can continue to base safety incentive policies on OSHA recordables, but the rewards should be of relatively nominal value, such as pizza parties, tee shirts, or hats. Employers should avoid offering expensive gifts that an OSHA inspector would view as a “substantial” reward that would encourage employees not to report.

As to drug testing, OSHA has provided a list of permissible testing.  As a general rule, post-incident drug testing will be viewed favorably by OSHA if it either is specifically permitted by some federal or state legal requirement or provision, or if it is limited to testing individuals whose conduct could have contributed to the incident. Good time to have your policy updated to stay in OSHA compliance.

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. Parts of this Column were taken from the latest Constangy Workplace Safety Practice Group client alert.

Friday, October 12, 2018

11th Circuit Limits Scope of OSHA Inspections





In the case of United States v. Mar-Jac Poultry, Inc.(link at www.alabamaatwork.com), an employee at Mar-Jac Poultry in Georgia was injured while attempting to repair an electrical panel using a non-insulated screwdriver. Because the employee was hospitalized as a result of the injury, the Company reported the case to OSHA, as it was required to do under § 1904.39. OSHA began the inspection by focusing on the accident, but then the inspectors sought to conduct a wall-to-wall inspection of the entire facility, looking well beyond the reported electrical hazard that had initially prompted the inspection. Mar-Jac consented only to the focused scope of the inspection and provided, among other documents, its OSHA 300 Logs for 2013 through 2015.

Based on the injuries and illnesses recorded on the OSHA 300 Logs, as well as the fact that Mar-Jac was included within the Regional Emphasis Program for Poultry Processing Facilities, OSHA sought and was granted a warrant to inspect the entire facility for a wide range of safety and health issues, including ergonomic, biological, and chemical hazards.  OSHA’s position at the time of this inspection was that if an inspected employer’s business was covered by a Regional Emphasis Program, the Agency was entitled to automatically expand the scope of the initial inspection to conduct a comprehensive wall-to-wall inspection looking at the categories of hazards addressed by the REP, in this case the 16 hazard categories in the Poultry Processing REP. 

Mar-Jac filed an emergency motion in Federal Court to quash the warrant, which request was granted in favor of Mar-Jac. On October 9, the U.S. Court of Appeals for the Eleventh Circuit agreed and found that the Occupational Safety and Health Administration could not expand the scope of an injury-based inspection to a wall-to-wall inspection based on the injuries and illnesses recorded on the employer’s OSHA 300 Logs.

Common Sense Counsel: OSHA cannot conduct an inspection unless an employer gives consent. If an employer does not consent, then the Fourth Amendment to the U.S. Constitution requires that OSHA seek a warrant. Probable cause is required, but a lesser showing is required in OSHA matters than in criminal matters. For OSHA inspection purposes, probable cause is established if OSHA can show either specific evidence of an existing violation or that the inspection was conducted based on “neutral criteria” contained in “reasonable legislative or administrative standards,” such as a Regional Emphasis Program.

Mar-Jac, while encouraging, was issued as an unpublished decision, meaning that it not binding on federal courts outside the Eleventh Circuit states of Alabama, Florida, and Georgia. Although the decision is too recent for OSHA to have taken a position yet, OSHA could argue that its impact is limited to cases in those three states. Employers should remember the Mar-Jac decision when OSHA attempts to expand the scope of an inspection based on the employers' inclusion in a National, Regional, or Local Emphasis Program or the fact that their OSHA 300 Logs show various injuries or illnesses. This is an important decision that all employers should have handy should OSHA attempt to expand its inspection at your particular plant location.

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. Parts of this Column were taken from the latest Constangy Workplace Safety Practice Group client alert.