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Friday, September 21, 2018

Injured New Jersey Worker’s Refusal to Submit to Medical Marijuana Drug Testing Not Protected

Daniel Cotto worked as a forklift operator at Ardagh Glass in Bridgeton, N.J.  On November 1, 2016, Cotto hit his head on the roof of a forklift at work while clearly working in a safety sensitive position, according to a recent New Jersey federal court order.  Cotto was sent to an Orthopedics clinic for a medical examination, where the doctor placed him on light duty work. The Ardagh Glass Safety Department asked Cotto to submit to a breathalyzer and urine test in order to return to work.  Cotto explained that he was taking prescription medications, including medical marijuana under the New Jersey Compassionate Use of Medical Marijuana Act (“CUMMA”).  He was also taking prescription Percocet and advised the company that he could not pass any urine or drug test.

Cotto claimed that he revealed his prescription medications to the company when he was hired, and that his doctor had given him a note stating he could operate machinery while using these drugs.  Ardagh Glass advised Cotto that it was not concerned about his use of Percocet but was concerned about his use of marijuana.

Cotto was not fired but he was placed on an indefinite leave.  He was not permitted to return to work until he could pass a drug test.  Cotto’s doctor wrote that Cotto had lifting restrictions because of medical conditions, but Cotto maintained that he could perform the essential functions of the job.  He sought a “reasonable accommodation,” specifically asking that the Ardagh Glass waive any requirement that he pass a drug test for marijuana.

Eventually Cotto filed suit in Superior Court of New Jersey, Cumberland County, asserting claims of disability discrimination, the "perception of disability discrimination," a failure to accommodate, retaliation, and a request for equitable relief including costs and reinstatement. Ardagh Glass then removed the case by invoking the Federal Court's diversity jurisdiction under 28 U.S.C. § 1332, and moved to dismiss the complaint in its entirety because CUMMA does not mandate an employer waiver of a drug test.

While the federal court agreed that Cotto plead enough to satisfy coverage under the New Jersey Law Against Discrimination, for his back and neck pain, and he appeared to be qualified to perform the essential functions of the job, Cotto could not show that he could operate machinery while using marijuana. 

The Court next noted that while CUMMA provides an affirmative defense to New Jersey patients who are properly registered under the statute and subsequently arrested and charged with possession of marijuana, decriminalization of medical marijuana does not shield New Jersey employees from adverse employment actions. These are the thirteen states with Medical Marijuana Cardholder Protection laws: Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Massachusetts, Michigan, Minnesota, Nevada, New York, Oklahoma, Pennsylvania, and Rhode Island. 

Cotto’s discrimination claim turned entirely on the question of whether he could compel Ardagh Glass to waive its requirement that he pass a drug test for marijuana.  On that issue the Federal Judge ruled: “It is plain that CUMMA does not require Ardagh Glass to do so.  We therefore find that Plaintiff has failed to show that he could perform the ‘essential functions’ of the job he seeks to perform.  Ardagh Glass is within its rights to refuse to waive a drug test for federally-prohibited narcotics.”

The case is Cotto v. Ardagh GlassPacking, Inc., No. 18-1037 (D.N.J. August 10, 2018), and is the first decision in New Jersey on the issue of employer reasonable accommodations and CUMMA.

Common Sense Counsel: knowing the state drug testing laws, and having the correct policy language is absolutely critical to winning these cases.

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

Wednesday, September 12, 2018

New FMLA Forms from the DOL are Here!

The Department of Labor (DOL) have been working away posting new model FMLA notices and medical certification forms.
Expiration: August 31, 2021.

No more month-to-month extensions. Rest easy through summer 2021. There’s nothing new, other than the new expiration date. Nevertheless, use these templates moving forward. For easy reference, here are the links to the new FMLA notices and forms on my blog site at


Certification forms
The notices/forms also can be accessed from this DOL web page.

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Common Sense Counsel: 9 Ways to Stop FMLA Abuse:

  1. Notice: Always insist employees provide the required notice once they learn of the need for leave, and coordinate with supervisors that such leave be designated as FMLA leave to make sure that employees start burning their FMLA allotment – nothing goes uncounted.
  2. Dock their pay: FMLA leave is always unpaid, and even for exempt employees, you can make deductions from their wages for a few hours’ intermittent leave without automatically converting them to overtime-eligible non-exempt employees.
  3. Ensure eligibility: Make sure employees requesting such leave are eligible to take it. They must be within 75 miles of a worksite with at least 50 employees.
  4. Don’t give it prematurely: Make sure employees have gained at least a year’s seniority with your company, and that they have worked at least 1,250 hours during the previous 12 months. If not, they’re not eligible and requests can be denied.
  5. Require medical certification: Leave must be medically necessary. You can insist on medical certifications, and annual recertifications if needed, and ask about specific reasons for leave, its duration and dates of treatment, both from the healthcare provider and the employee. Attach a job description to the medical certification form. 
  6. Transfers: You can transfer employees to other work if intermittent leave is too disruptive in their normal positions.
  7. Count overtime: You can count overtime missed in calculating the total 12-week allotment.
  8. Count the holidays: You can count any holidays falling within any leave taken toward employees’ total 12-week FMLA allotment, to make sure they reach the limit sooner, and
  9. Make ’em use paid time first: You can compel the use of paid leave first, so employees have to burn vacation before any unpaid FMLA leave.
Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at or 334-246-2901.

Friday, September 7, 2018

Getting FLSA Wrong Can Be Costly

Forty-Four employees of HMR of Alabama, Inc. worked for HMR located in Alexander City, Alabama, comprised of thirty-three certified nursing assistants or “CNAs”; three are licensed practical nurses or “LPNs”; and eight hold dual positions, such as “CNA/Concierge” and “Driver/Driver Coordinator.” In August 2016 they filed a joint complaint in Federal Court making claims for overtime wages under the Fair Labor Standards Act (FLSA), 29 U.S.C.§ 201, claiming that they had worked without compensation during their meal breaks for the past six years (2,089 weeks total).

HMR Veterans Services, Inc. has been serving Veterans in State Veterans Homes for nearly two decades with homes it manages for the state veterans’ administrations in the four states of Alabama, Texas, South Carolina and Maryland, based upon its website. They claim to be the gold standard of partnering with state veteran home services.

The employees claimed that they routinely worked more than 40 hours per week without full compensation because HMR deducted meal breaks from their pay even when they were not “completely relieved from duty.” They state that during meal breaks they were required to “care for patient needs” and “tend to patients,” and they provide each employee’s specific job title and list the weeks each employee claims to have worked more than 40 hours. Compensable work under the FLSA includes any activity that is a “principal activity” or “integral and indispensable to the principal activities that an employee is employed to perform.” A detailed description of the exact acts each plaintiff performed during meal times is not required to pursue an FLSA claim.

On Thursday the 11th Circuit Court of Appeals in Atlanta Ordered that their case be sent back for trial and that the employees need not give a detailed description of their lunch time activities to pursue an FLSA claim.  The Court Order showed three well know Alabama law firms representing the employees. Attorney fees are routinely awarded under the FLSA and can be substantial. 

Common Sense Counsel: 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.

Click here to access the full 44 employees v HMR docket.

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

Friday, August 31, 2018

Farting Security Guard Gets Fired

Paul Flart is a former hospital cop and current Instagram sensation. Doug, stage name "Paul Flart," made himself a star by recording himself passing gas while at work as a hospital security guard. But Doug apparently made the mistake of including some shots of the hospital in his videos, he got fired, and video recorded his termination. The supervisor managed to keep his cool based on the recording Doug made.

Doug says he has bigger fish to fry. He reportedly now plans to make a fortune on music videos and merchandise. His announced goal is “to be the first person to make a living off farting after getting fired from his job in a public manner.”

When Doug arrived to work Thursday morning, he was met by a supervisor who told him we need to talk. 'It's come to our attention that you've recorded yourself in our uniform on the property,' an unidentified hospital employee can be heard saying in video footage filmed by Doug as he arrives to work.  

Filming the encounter, Doug is told he has violated company policy which prohibits using phones on the job an unusually high amount of times (farting over 75 times and filming himself wearing his security guard uniform on private property). He is then asked to turn in his badge and uniform, and stop recording.  Doug calmly declines yet does not deny the accusations. He refuses to sign the report detailing his behavior and walks away.

Going by the pseudonym Paul Flart, a nod to the hit film Paul Blart: Mall Cop, Doug is planning his next steps in his viral farting career.   Merchandise, music videos and graphic designs are just a few plans he says are in the works. His Instagram account has amassed nearly 50,000 followers from across the globe who contact him to praise his footage and send messages of support.  He has a go-fund-me page as well.

In the flatulent footage, Doug faces the camera and farts on cue during quiet periods at work where the hospital lobby has really great acoustics.  A naturally good place to fart, according to Doug.  Doug has been running The Fart Authority Instagram page since March, featuring himself in dozens of videos farting while at work.

Common Sense Counsel: If you're a security company who is currently hiring, you may want to do a thorough social media check on your applicants before you make any decisions you'll regret.
However, you probably have nothing to worry about with regards to Doug based on his newly found fame. Like Doug, if you are an employee considering internet fame, don’t do it while at work, or in your work uniform. You are more than likely an employee at will and farting is not an ADA protected activity, at least not yet. If you are an employer, train your supervisors to keep their cool, like this one, and consider a no video or recording handbook rule.

Hopefully, you will have the good sense to not let young boys read this column or you will literally never hear (or smell) the end of it! Have an Awesome Labor Day!
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. The article was inspired by a Constangy blog by his Partner Robin Shea.

Wednesday, August 22, 2018

DOT Seeks Public Comment on Revising Current Hours-of-Service Regulations CDL Drivers

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) on Wednesday announced that it is seeking public comment on revising four specific areas of current hours-of-service (HOS) regulations, which limit the operating hours of commercial truck drivers.

The upcoming Advanced Notice of Proposed Rulemaking (ANPRM), which will be published in the Federal Register, responds to widespread Congressional, industry, and citizen concerns and seeks feedback from the public to determine if HOS revisions may alleviate unnecessary burdens placed on drivers while maintaining safety on our nation’s highways and roads.  The comment period will be open for 30 days.

The four specific areas under consideration for revision are:
  • Expanding the current 100 air-mile “short-haul” exemption from 12 hours on-duty to 14 hours on-duty, in order to be consistent with the rules for long-haul truck drivers;
  • Extending the current 14-hour on-duty limitation by up to two hours when a truck driver encounters adverse driving conditions;
  • Revising the current mandatory 30-minute break for truck drivers after 8-hours of continuous driving; and
  •  Reinstating the option for splitting up the required 10-hour off-duty rest break for drivers operating trucks that are equipped with a sleeper-berth compartment.
Earlier this year, the congressionally mandated electronic logging device (ELD) rule, which required most FMCSA-regulated motor carriers to convert their records from paper to an electronic format, became effective. While compliance with the ELD rule has reached nearly 99 percent across the trucking industry, it has also brought focus to HOS regulations, especially with regard to certain regulations having a significant impact on agriculture and other sectors of trucking. 

The first in a series of public listening sessions on the ANPRM will take place Friday, August 24, 2018, in Dallas, Texas, at the Kay Bailey Hutchinson Convention Center beginning at 3:00 p.m. local time. 

Common Sense Counsel: the trucking industry has undergone tremendous technology changes over the past two years. The ELD and GPS allows trucking companies and DOT regulators to track virtually every minute a driver is in the truck. This in turn is creating hours of services issues and possible heavy DOT fines for violations for exceeding those numbers. Stay tuned and stay in compliance.

Friday, August 17, 2018

Employer Weapons to Protect Trade Secrets

AHS Staffing, LLC (AHS), located in Texas, matches nurses and other healthcare professionals on temporary and permanent bases with hospitals, healthcare groups, occupational healthcare clinics, individual practitioners, psychiatric facilities, government institutions, and managed care entities through contract management groups. The healthcare staffing industry in their Texas market is highly competitive.

In order to ensure its competitive advantage, AHS compiled confidential and proprietary information including: customers, clients, healthcare providers, contacts, prospects, compensation     plans, employee benefits, confidential  market  studies, pricing  studies,  business plans and strategies, non-public financial statements, methods of bidding, bids to customers, profit margins, unique software programs, databases developed by AHS, manuals, candidate performance, compensation and skill sets; all which it classified as “Confidential Information.”

AHS claimed in its Texas-filed federal lawsuit that its former employees maliciously changed the information for Candidates in the Database in order to hurt AHS’s business, then left AHS with a sizable amount of Confidential Information to work for its direct competitor.  AHS then contended that they had been using its trade secrets and confidential business information to compete with AHS in breach of their contractual and common law duties to AHS.

On July 9, 2018, AHS filed suit against the departing employees asserting claims for: (1) violation of the federal computer fraud and abuse act; (2) harmful access by computer; (3) breach of contract; (4) misappropriation of trade secrets under the Texas Uniform Trade Secrets Act; (5) tortious interference; (6) breach of fiduciary duty; and (7) civil conspiracy. The Court held a hearing on AHS’s motions for preliminary injunction and ruled in favor of AHS’s request and granted the injunction on August 15, 2018.

Common Sense Counsel: The Computer Fraud and Abuse Act (CFAA), which provides a private right of action where a party knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value. The Defend Trade Secrets Act (DTSA), which provides a federal cause of action to the owner of a trade secret that is misappropriated and is related to a product or service used in (or intended for use in) interstate commerce, are significant weapons to combat employee trade secret theft. For an employer to use these weapons, be prepared to quickly take these steps now: 1) update all non-disclosure agreements, confidentiality agreements, employment agreements, consulting agreements, and independent contractor agreements to include new DTSA non-disclosure provisions to include the required notice signed by all employees; 2) documents containing trade secrets should be labeled as confidential, their distribution should be limited, they should be maintained in secure areas, and individuals who are privy to such secrets should be trained on the nature of that information and how to safeguard it; 3) access to computer files containing such information should be restricted and tracked; 4) those with access should be trained on the files’ confidentiality; and 5) because trade secrets litigation needs to move quickly and often involves violations of non-competition or non-solicitation agreements, be prepared to bring  such claims in tandem. Having legally sound documents gives the wronged employer a double-edged sword.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at or 334-246-2901. Click here to access the full case.

Saturday, August 11, 2018

Arbitration Agreement Trims Nearly 3000 Wage Claims Against Chipotle

Arbitration Agreement Trims Nearly 3000 Wage Claims Against Chipotle
By Tommy Eden

As background, the United States Supreme Court’s recent ruling in Epic Systems Corporation v. Lewis resolved the question of whether employees and employers should be allowed to agree that any disputes between them will be resolved through one-on-one arbitration.” Epic Sys., 138 S. Ct. 1612, 1619 (May 21, 2018). The Court concluded that they should be permitted to do so and rejected the position that mandatory individualized arbitrations violate the National Labor Relations Act (“NLRA”) and are therefore unenforceable under the Federal Arbitration Act (“FAA”).”

In one of the very first lower court cases to be decided under this new standard, almost Chipotle 3000 workers sought to opt into a Fair Labor Standards Act (FLSA) collective action. The mandatory employee arbitration agreement signed by all Chipotle Mexican Grill employees prohibited class and collective action claims. Chipotle contended that the Arbitration Agreement serves a commercial purpose because it provides predictability in handling litigation matters and reduces dispute resolution costs. These benefits do not come at the expense of the employees, Chipotle maintained, because the Agreement provides that employees cannot be required to pay any cost of the arbitration that they would not be required to pay if the matter was heard in court. Further, Chipotle maintained that its decision to permit only individual claims is commercially reasonable because it allows all parties to realize the benefits of bilateral arbitration’s informality and many businesses have selected this route and the Supreme Court has ruled it lawful.

On August 6, a Colorado federal judge trimmed 2,814 opt-in Chipotle Mexican Grill workers from a collective action accusing the company of not paying hourly employees for off-the-clock work, pre and post-shift work they were required to perform, since they had signed the arbitration agreements that barred them from pursuing claims collectively.

Text Box: 3Common Sense Counsel: The Epic Systems case is truly a gift to employers who wish to engage in employment claims related risk reduction. Such a program increases the prospects that concerns will be resolved before they ripen into actual EEOC Charges, DOL Investigations, Lawsuits - you name your worst employment nightmare. In light of the emerging Supreme Court case law favoring alternatives to court litigation, consider options for designing an employee dispute resolution program and the potential business advantages - not the least of which is not having to spend a sunny day locked in a windowless room with a plaintiff’s attorney with an attitude. Plaintiff’s attorneys hate these programs for obvious reasons. The best programs have the following components: 1) an internal complaint process with a promise of no retaliation; 2) a toll free hot line for multiple location employers; 3) handbook provisions giving employees at least two channels to make their complaint and fair investigation process; 4) well drafted and broadly worded arbitration provision, covering class and collective claims, that will pass court scrutiny; 5) training for all employees on the process; 6) private arbitration panel of former local judges, or AAA Arbitration, and mostly importantly; 7) a Human Resource professional with a listening ear and risk reduction mindset.

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