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Friday, March 24, 2017

OSHA Catches Midnight Rider

By Thomas Eden

On February 20, 2014, during the first day of shooting for the film “Midnight Rider,” about the Allman Brothers Band, as the Film Allman crew set up to shoot a scene on the Doctortown train trestle—an active trestle owned by CSX Transportation (“CSX”) that spans the Altamaha river in Jesup, Georgia—a freight train barreled through, killing a 27-year-old female camera assistant and seriously injured several other Film Allman crew members. Film Allman supervisors “knew the railroad tracks were live tracks, in active use by CSX, and that CSX had refused permission to film on the tracks,” the 11th Circuit Court of Appeals ruled on March 20. 

“None of Film Allman’s supervisors informed the crew and cast members that CSX would not be on site and would not be controlling train traffic on the trestle while they were filming on the tracks. In short, Film Allman put its employees in harm’s way, and the results were catastrophic,” found the 11th Circuit panel in its decision affirming a $70,000 OSHA fine for willfully violated Section 5(a)(1) of the Occupational Safety and Health Act (“OSHA”), which is often referred to as the “general duty clause.” 

The 11th Circuit went on to hold “the Commission correctly upheld the Secretary’s invocation of the informer’s privilege (informer’s privilege allows OSHA to withhold certain portions of witness statements that OSHA obtained during its investigation), substantial evidence underlies the Commission’s classification of Film Allman’s violation of Section 5(a)(1) as willful, and the Commission did not abuse its discretion in imposing the statutory maximum ($70,000) penalty against Film Allman.”

Common Sense Counsel: In 1970 the Allman Brothers Band released Greg Allman’s song Midnight Rider. Part of the lyrics went “I got to run to keep from hidin'; and I'm bound to keep on ridin'; I got one more silver dollar; I got only the clothes I'm wearin'; and the road goes on forever; not gonna let 'em catch me now; keep on riding - midnight rider.” That was the scene the Film Allman crew was seeking to create on the Doctortown train trestle. 

The lesson in the tragic story is that no employer, not even Hollywood producers, are immune from their OSHA Section 5(a)(1) duty to provide employees a safe place to work free from recognized hazards. Sometimes it takes a trained professional who knows the regulations to help you recognize those hazard before your employee takes that “midnight ride.” 

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL a member of the ABA Section of Labor and Employment Law He can be contacted at or 334-246-2901. Blog at with link to decision. 

Tuesday, March 14, 2017

Failing to Conform to Gender Stereotype Claims Increase

By Thomas Eden

Jameka Evans worked at Georgia Regional Hospital as a security officer from August 1, 2012, to October 11, 2013, when she left voluntarily. During her time at the Hospital, she claimed that she was denied equal pay or work, harassed, and physically assaulted or battered. Evans also alleged that she was discriminated against on the basis of her sex and targeted for termination for failing to carry herself in a “traditional woman[ly] manner.” Evans presented herself as a gay woman, who claimed in her pro se lawsuit that while she did not broadcast her sexuality, it was “evident that she identified with the male gender, because of how she presented herself (male uniform, low male haircut, shoes, etc.).”

Evans contended she was punished because her status as a gay female did not comport with her supervisor’s gender stereotypes and this caused her to experience a hostile work environment. After Evans lodged her complaints about these violations, her supervisor asked Evans about her sexuality, causing Evans and “others” to infer that her sexuality was the basis of her treatment.

Attached to Evans complaint was a “Record of Incidents.” This report stated that her supervisor had repeatedly closed a door on Evans in a rude manner, that she experienced scheduling issues and a shift change, that a less qualified individual was promoted as her supervisor, she was scrutinized and harassed and that someone had tampered with her equipment, including her radio, clip, and shoulder microphone.

In a case likely headed to the U.S. Supreme Court, the split Eleventh Circuit panel on March 10 held that Anti-Gay Bias is not prohibited under Title VII. This was an affirmation of the district court’s dismissal of Evan’s suit against the hospital alleging she was harassed because she’s a lesbian and didn’t conform to gender norms, relying on a decades-old 11th Circuit decision that “discharge for homosexuality isn’t prohibited under Title VII.” However, the panel vacated the district court’s order dismissing Evans’ claim that she was discriminated against for “failing to conform to gender stereotypes,” and remanded it back to the lower court with instructions to grant her leave to amend that claim. 

In a concurring opinion, Circuit Judge William H. Pryor Jr. (on the Trump Supreme Court list) wrote: “unsurprising reality that some individuals who have experienced discrimination because of sexual orientation will also have experienced discrimination because of gender nonconformity by no means establishes that every gay individual who experiences discrimination because of sexual orientation has a ‘triable case of gender stereotyping discrimination.” 

Common Sense Counsel: this appears to be a case where stray word by a supervisor about Evan’s “sexuality” complicated a simple discharge, and otherwise non-actionable slights. There is simply no substitute for training your supervisors in effective and defensible discipline and termination. Also, the new claim of “failing to conform to gender stereotypes” appears to be gaining traction in the courts. So train your supervisors not to use lose words like “attitude” or “company culture” or “sexuality” or similar phrases that lack defined meaning in employment law, as the courts may assign meaning you do not like. 

Thursday, March 9, 2017

How Do Employers Win Disability Related Misconduct Cases?

By Thomas Eden

Janna DeWitt had Type I diabetes and is insulin dependent requiring her to monitor her blood sugar levels numerous times per day. She worked for SWBTC, a telephone service company with a customer-service call center in Wichita, as a customer service representative beginning in April 1997. When DeWitt’s blood sugar levels are relatively low, she claimed to experience sweating, shakiness, fatigue, lethargy, confusion, and poor coordination. DeWitt told her managers at SWBTC that she had diabetes and that she may experience low blood sugar levels and need to eat or drink something to correct them. Throughout her employment at SWBTC, the company allowed DeWitt to take breaks to eat or drink to raise her blood sugar as needed. DeWitt used FMLA leave intermittently for health issues related to her diabetes, but only took FMLA leave when vacation days were not available. 

On January 21, 2010, DeWitt mistakenly left phone service on a customer’s account after the customer cancelled the service. Known as a cramming violation, the failure to remove a service plan from a customer’s account after the customer cancels the service is a violation of the SWBTC Code of Business Conduct and a terminable offense. DeWitt was suspended the following day. 

On January 29, 2010, DeWitt attended a “Day in Court” to address the cramming incident and determine her punishment. As punishment for the cramming violation, DeWitt signed a Last Chance Agreement which stated that “even one incident of failing to maintain satisfactory performance in all components of [her] job, including . . . company policies and conduct may lead to further disciplinary action up to and including dismissal.” 

On March 3, 2010, two months after the cramming incident, DeWitt suffered a severe drop in blood sugar while at work which she claimed caused her to experience lethargy, disorientation, and confusion, and was “unable to communicate with anyone,” as her First Line Supervisor monitored her calls and noted that she had hung up on at least two customers. Later that day, a suspension meeting was conducted with DeWitt regarding the two calls she had dropped earlier in the day in which DeWitt claimed she had been experiencing “dangerously low blood sugar levels at the time of the calls.” 

On March 10, 2010, SWBTC conducted Dewitt’s Day in Court regarding the dropped calls at the end of which SWBTC terminated DeWitt for hanging up on two customers in violation of both the SWBTC Code of Business Conduct and her Last Chance Agreement. Dewitt then sued SWBTC in federal court under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA).

The Tenth Circuit Court of Appeals on January 18, 2017, ruled that the ADA and FMLA do not require employers to excuse an employee’s misconduct even though the conduct was related to the employee’s disability and affirmed the dismissal of her case. 

Common Sense Counsel: this is a situation concerning so-called disability-related misconduct. This case makes clear that after-the-fact accommodation requests for leniency are not reasonable and that so long as the work rule at issue is consistent with “business necessity,” disabled employees can generally be held to the same conduct standards as other employees. The Last Chance Agreement, clear handbook rules, a well drafted essential functions job description and Day in Court due process were critical reasons for this employer’s win. 

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

Thursday, March 2, 2017

What in Trump’s Paid Family Leave Plan?

By Thomas Eden

President Trump’s address to Congress Tuesday night didn’t have much on labor and employment issues, apart from the creation of jobs (which is no small thing and would be awesome if it pans out). But he did mention “paid family leave,” ever so briefly.

Credit (or blame) for the concept of paid family leave goes to the President’s daughter Ivanka, herself a businesswoman and mother of two young children.

The plan is still a work in progress, but here is a broad outline as it currently stands:

Moms would be entitled to six weeks of paid maternity leave, which would be financed through state unemployment systems. There has been talk that restricting the leave to mothers is unconstitutional. But because new mothers are uniquely situated in the first six weeks after the birth of a child (in other words, they’re the only ones who have an actual physical disability), which I think would eliminate any equal protection concerns. In any event, it now appears that the concept may be expanded to include fathers and LGBT parents who did not give birth to the child. If they do that, I don’t see how they couldn’t expand it further to include all adoptive parents, so be on the lookout for that, too.

Families would be entitled to a tax deduction for child care expenses. As it stands now, the deduction would be available to parents with annual income of less than $250,000, and to couples with income of less than $500,000. The less-well-heeled would be entitled to an earned income tax credit for child care. Right now, there doesn’t appear to be anything for parents whose income is so low that they don’t pay taxes, and arguably they are the most in need of help with child care expenses.

According to some reports, some Democrats have indicated a willingness to work with Trump because they generally favor paid family and medical leave, and they see Ms. Trump’s proposal as giving them a foot in the door. For the same reason, resistance is expected to come from Republicans, and also because the plan as it currently stands is estimated to cost about $500 billion over the next ten years. Ouch!

Common Sense Counsel: This is a work in progress. A lot is sure to change before a plan is formally presented to Congress. Stay tuned as we began the ups and downs of the Trump labor and employment law train of change!

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP office in Opelika, AL and can be contacted at or 334-246-2901. This entertaining update was given by my Partner Robin Shea in a blog post this week. Blog at www.alabamaatwork with link. 

Friday, February 24, 2017

What Not To Do During a Wage Hour Investigation

By Thomas Eden

El Tequila, LLC owned by Carlos Aguirre, is a restaurant with four locations in the State of Oklahoma, which was subject to a series of investigations by the Department of Labor (DOL) Wage and Hour Division in response to employee wage complaints. The Tenth Circuit Court of Appeals issued an opinion in early February 2017 detailing misconduct by Aguirre as he instructed employees to lie during interviews, provided falsified “white-out” and “edited” employee time records to the DOL investigators. By the government’s calculations, Aguirre owed the employees over $600,000 in back wages.

More specifically, the Court found that “the records Mr. Aguirre provided during the … Investigation, known as middle sheets, were based on his false summaries of how many hours employees worked, rather than actual clock-in and clock-out times…. Mr. Aguirre withheld [the actual] time sheets during the … Investigation, and many time entries had been “white-out” and edited to conform with the Federal Labor Standards Act (FLSA).”

At trial “employees revealed that Mr. Aguirre instructed them to lie in their interviews during the … Investigation.” Subsequently, “employees told the WHD investigator that they had been working from 60 to 70 hours per week and were paid a salary…. They said the time sheets were not accurate, and ‘that they were forced to sign’ them.” During the litigation, Mr. Aguirre admitted that the time sheets and middle sheets were not correct, and that he “told his employees what to say in their interviews.”

Under the FLSA, employees are also entitled to liquidated damages as a multiplier of their back pay wage claim; an additional two years or three years for a willful violation. The government argued that Aguirre willfully violated the FLSA by: (1) falsifying payroll records, (2) withholding records requested by the WHD investigator, (3) lying to the WHD investigator and instructing his employees to lie, (4) recklessly disregarding his duty to determine whether it was violating the FLSA, (5) recklessly disregarding FLSA requirements, (6) and recklessly disregarding his duty to keep accurate records.

The Tenth Circuit concluded that the “evidence indicates that Mr. Aguirre took affirmative steps to create the appearance that El Tequila complied with the FLSA, including adjusting records to suggest that workers were properly paid, withholding documents, misrepresenting how employees were paid, and instructing employees to do the same. A reasonable jury could not conclude El Tequila’s violations were negligent” but willful. The Tenth Circuit affirmed a $2 Million Dollar Willful judgment against Aguirre and his restaurant. The FLSA allows for personal liability of the owner. 

Common Sense Counsel: Don’t lie during a FLSA Investigation interview and don’t use white-out to edit time records. Having a sit down wage and hour audit is the only way to make sure you are in compliance with the multitude of wage and hour regulations. 

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a Contributor to the ABA 2016 FLSA Supplement published by Bloomberg BNA. He can be contacted at or 334-246-2901. Blog at

Friday, February 17, 2017

Employers How To Handle “Day Without” Protest Strikes

 By Thomas Eden

As politics spill over into the workplace, this is common sense counsel on how to react:

Question: This week we’ve had immigrant strikes, and there has been talk recently about a “Day Without a Woman” strike that might take place next month. What recourse does an employer have? Would a strike like this be “protected concerted activity,” which means that the employer might not be able to take adverse employment action against a participant?

Answer: It depends. The National Labor Relations Act (NLRA) defines protected concerted activity as any action taken by two or more employees for the mutual aid and protection of workers (or action taken by one employee on behalf of other employees). Protected actions must somehow relate to the terms and conditions of their employment. Practically, this can mean discussing their wages or working conditions, bringing complaints to management’s attention, or taking part in organizing activities. It can also mean airing their grievances publicly — for example, by posting negative information about their employer online, engaging in a strike, or speaking to news organizations.

As a corollary, while the Act gives the employees these rights, it also generally restricts employers from taking any disciplinary action against employees for exercising them. Thus, when an employer restrains an employee from engaging in protected concerted activity with discipline or threat of discipline, it generally commits an unfair labor practice unless the right to engage in the activity has been waived, for example, by a no-strike provision in a collective bargaining agreement. That can eventually end you up before the National Labor Relations Board.

Question: If an employee wanted to take the day off work to participate in the strike and gave the employer reasonable notice, and maybe even had Paid Time Off or vacation time available, should the employer let the employee take the day off for that purpose? Even if the employer disapproves of the idea of a “strike”?

Answer: If the employer would normally allow an employee to take the day off under its policy, then it would in all likelihood need to allow it for the strike, as well. Otherwise, the employer runs the risk of being accused of discriminatorily applying its policies and procedures, in a direct effort to prevent an employee from engaging in protected concerted activity.

Question: Does it make any difference if the employee taking the day off (either with or without notice) is a member of management, as opposed to a non-management employee?

Answer: The NLRA applies only to non-supervisory employees, and accordingly, supervisors (and managers) are not entitled to the Act’s protections.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL and can be contacted at or 334-246-2901. This advice was given by my Partner Leigh Tyson in a bulletin to all Constangy clients this week. Blog at with link to full bulletin.

Thursday, February 9, 2017

Canada Preparing to Legalize Marijuana

By Thomas Eden

The federal government is preparing to legalize marijuana, causing many to ask: what will a regulated cannabis industry in Canada look like?

The Task Force on Cannabis Legalization and Regulation has released its much-anticipated report to help guide the federal government on the best approach to regulating legal access to cannabis. The comprehensive report casts a wide net to address issues from public health and safety to advertising, and supply chain regulation. To inform its recommendations, the Task Force sought input from provincial, territorial and municipal governments, representatives from Indigenous governments and organizations as well as experts in relevant fields. Canadians had the opportunity to share their views through an online public consultation this past summer.

What You Need To Know
·     The report is not law nor is it draft law. The federal government is expected to introduce draft legislation in the spring of 2017.1 After draft legislation is tabled, there will be an opportunity for stakeholders to comment. Cannabis will not be legalized until the new legislation comes into force after being passed by Parliament and once regulations have been developed.
·     In the meantime, production, cultivation, and sale of cannabis for recreational use continues to be illegal in Canada. Only production, cultivation and sale of cannabis by licensed producers, and personal cultivation for medical use is legal. Medical users can also designate a producer to grow cannabis on their behalf.
·     There are no recommendations in the report directed to the grandfathering of licenses of current producers of cannabis for medical use under the new legislation.
·     The report urges all levels of government to increase capacity in many areas relating to production, distribution and retail, quality control and enforcement, and research and surveillance before legislation is finalized. This will include building capacity for licensing and inspection at all levels of government: federal (e.g., for production and laboratories), provincial and territorial (e.g., for distribution and retail), and municipal (e.g., for home-cultivation permits).
·     The Task Force's key recommendations are highlighted below:
o  Set a national minimum age of purchase of 18, but allow provinces and territories to set a higher age if they wish to do so.
o  Limit personal possession of non-medical dried cannabis in public to 30 grams and limit personal cultivation, for non-medical purposes, to four plants per residence.
o  Regulate the production of cannabis and derivatives (i.e., edibles) at the federal level.
o  Regulate the wholesale distribution and retail sales of cannabis at the provincial and territorial level.
o  Maintain the current legal system for access to cannabis for medical use but eliminate the category of the designated producer.
o  Tax potent strains at higher rates to discourage their purchase.
o  Prohibit mixed products, such as cannabis-infused alcoholic beverages or cannabis products with tobacco, nicotine or caffeine.

Overcoming the Challenges Ahead
The recommendations for an effective regulatory framework for cannabis address a number of challenges that the government will face as it moves forward with legalization. Among the more notable challenges are issues involving retail sales, advertising and packaging, production of cannabis, and public safety. The Task Force's key recommendations in relation to these areas are highlighted below:
Retail Sales of Cannabis and Cannabis Products
·     Provinces should control retail sales.
·     Limit the density and location of storefronts and implement requirements for appropriate distances from schools and community centres.
·     Avoid co-location of alcohol or tobacco and cannabis sales wherever possible to help mitigate combined use.

Advertising, Packaging and Labelling
·     Restrictions on the advertising and promotion of cannabis should be analogous to those imposed on alcohol and tobacco. For example, in Canada, tobacco cannot be promoted by sponsorships, testimonials or lifestyle advertising (evoking images of glamour, risk, etc.). Similarly, alcohol advertising cannot associate alcohol with social or personal achievement.
·     Therapeutic claims about the benefits of cannabis should comply with legislative requirements.
·     Plain packaging for cannabis products should limit label information to company name, strain name, price, amounts of THC, and warnings.
·     Packaging should not be "appealing to children" and should be opaque and child-resistant. For example, it should not be designed to look like candy, use bright colours, cartoon characters, etc.
·     Edibles should have packaging consistent with requirements for food and beverages, with standardized servings, and a THC symbol.

·     Apply good production practices, which are already in place for cultivation of cannabis for medical use, to recreational production. This includes restricting the use of pesticides and fertilizers to those approved for use on cannabis plants.
·     Use licensing and production controls to encourage a competitive market.
·     Allow outdoor cultivation to promote eco-friendly production and a seed-to-sale tracking system to monitor the movement of cannabis plants and resulting products throughout the supply chain—from production to distribution to final sale, and to facilitate product recalls.

Public Safety and Protection
·     Maintain criminal offences for illicit production, trafficking, possession for the purposes of trafficking, possession for the purposes of export, and import/export, and trafficking to youth.
·     Introduce administrative penalties (with flexibility to enforce more serious penalties) for contraventions of licensing rules on production, distribution and sale.
·     Federal and provincial governments should invest immediately in the development of a national, comprehensive public education strategy to warn of the dangers of cannabis-impaired driving as well as support the development of an appropriate roadside drug screening device for detecting THC levels.

1. Statement from the Government of Canada on the Receipt of the Report from the Task Force on Cannabis Legalization and Regulation. December 13, 2016. Available online at
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.