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Sunday, December 28, 2008

Human Resources 2009

Human Resources 2009: Make Your Resolutions Today
Reprint - Opelika & Aburn News, Dec. 28, 2008

To keep your employer out of the courtroom, the EEOC, DOL, OSHA, DHS offices, etc, during 2009, I recommend you make a few simple New Year's Resolutions Today.
Resolve to audit your Handbook, Policies & Forms. Not just updating your policies in light of changes to the Family and Medical Leave Act, the Americans with Disabilities Act, E-Verify, an aggressive labor movement and Democratic Administration. Handbooks, Policies and Forms should be reviewed by an outside professional at least once a year to ensure that they not only remain compliant with laws and regulations, but also are aligned with your organizational goals and best management practices.

Resolve not to rely on employment at-will when firing employees. Employees who are not given a reason for their termination fill in the blank, assigning the termination to the discriminatory or retaliatory mindset of their boss. What kind of a message are you sending to the rest of your workforce when you fire someone for a reason such as "just because I thought it was in the best interest of the Company".

Resolve to Document, Document, Document. Poor record-keeping practices can sink your Company’s ship in a Courtroom or at the EEOC. With the new Democratic Administration it will be extra challenging trying to prove that: an employee deserved to be fired; retaliation was not a reason; the person did not deserve to be hired or promoted; a worker had performance deficiencies; a proper harassment investigation was conducted; workers were paid correctly their regular and overtime wages; employees received training; everyone has a sign off confirming they were aware of company rules; etc.
Resolve not to be overly nice. Never overreact and fire an employee before you've conducted a proper “cool headed” investigation with written disciplinary procedures. Failing to react to a situation can be just as harmful. Letting an employee's infractions slide makes it harder later to prove consistency. Remember my # 1 HR Rule: “No Good Deed Goes Unpunished”. Don’t allow supervisors to make the mistake of trying to motivate under performing workers with raises, bonuses, or overly positive (untrue) performance reviews.

Resolve to keep emotions in check. A supervisor who is angry with an employee for making an unjustified harassment complaint and reacts by taking harsh action can get you in hot water with the EEOC with a retaliation Charge. Keep a sharp eye over adverse employment decisions that affect employees who have recently engaged in protected activity, or who fall in a protected category.

Resolve to keep Counsel in the loop. The time to seek wise counsel is not when a legal problem is steaming teapot. Rather my #2 HR Rule: “Nip it in the Bud”! If you have any doubts about your judgment to handle a difficult situation, it is worth 30 minutes of consultation time to stay out of court and egg off your face, not counting racking up huge legal bills later and putting your job on the line.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at 

Sunday, December 21, 2008

Immigration Law Update

Immigration Law Update: Lots of Changes Going On

Reprint - Opelika & Auburn News,

New Form I-9 in Interim Final RuleEffective Feb. 2, 2009, the federal Department of Homeland Security (DHS) has once again revised Form I-9 requirements and dictated the use of a revised form. Every employer is mandated by law to have newly hired employees complete a Form I-9 to verify employment eligibility. Among the changes to Form I-9:
Forms I-688, I-688A, and I-688B have been eliminated from the list of documents that can verify identity and employment authorization;
The employee attestation section is updated so that just above the employee’s signature appears the statement: “I am aware that federal law provides for imprisonment and/or fines for false statements or use of false documents in connection with the completion of this form.” and
Added the category of “non-citizen national” to the classification list.

New H-2B Visa RegulationsOn Dec. 19, 2008, the Department of Homeland Security published new regulations that revise the H-2B visa program. The H-2B program is a temporary work visa program for foreign workers in nonfarm jobs. Here are the changes:
Non-immigrant workers in occupations other than agriculture, logging, or registered nursing can perform labor or services in the United States on a temporary or seasonal basis;
Employers must now attest that they have fully complied with all H-2B program requirements;
Employers are prohibited from imposing certain fees on prospective H-2B workers as a condition of employment; and
Under the Department of Labor regulations, which also revised the H-2B labor certification process, employers must apply to DOL for H-2B labor certification before they can petition DHS for the admission of H-2B workers to the U.S.

Updated H-2A Visa ProgramEffective Jan. 17, 2009, Department of Homeland Security has revised regulations that govern the H-2A visa program. The H-2A visa program allows foreign workers to do farm work in the U.S. The H-2A hiring process is streamlined for employers to encourage greater use of the program as follows:
Permits non-immigrant agricultural workers to provide labor or services in the United States on a temporary or seasonal basis;
Permit H-2A workers to more freely change employers if the new employers participate in E-Verify program;
Prohibit employers and recruiters from imposing certain fees on prospective H-2A workers as a condition of employment; and
The Department of Labor also substantially revises its companion regulations, effective Jan. 17, 2009, that govern the H-2A labor certification process so that employers must apply to DOL for H-2A labor certification before they can petition DHS for the admission of H-2A workers to the United States.

E-Verify Mandated for Federal Contractors/Subcontractors
Beginning June 30, 2009, federal contractors and subcontractors will be required to use the federal E-Verify system to verify the employment eligibility of employees. The final rule was published November 14, 2008, amending the Federal Acquisition Regulation (FAR) and implementing President Bush's Executive Order 12989 which he signed June 6, 2008. (see O&A News Archives)
Practical Advice: Review of the new regulations and forms at and is your critical first step. Next, proper I-9 Form completion, adoption of a new immigration compliance policy in your employee handbook, supervisor training, auditing 1-9 recordkeeping and E-Verify training are critical to a smooth transaction. Happy New Year from the outgoing Bush Administration!
Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at 

Sunday, December 14, 2008

New FMLA Rules

New FMLA Rules: Countdown to January 15, 2009
Reprint - Opelika-Auburn News, Dec. 14, 2008

The Department of Labor (DOL) published 750 pages of final regulations governing the Family and Medical Leave Act (FMLA) effective January 16, 2009. Here are a few of the highlighted changes (there are many more):

Who is an “Eligible” employee?
The FMLA requires that employees must work for an employer for at least 12 months to be eligible, but these 12 months need not be consecutive. The final regulations allow for a break in service of up to seven (7) years.

Serious health condition redefined:
"Continuing treatment by a health care provider" requirement has been clarified to require that the two visits must occur within 30 days, and the first visit must occur within seven days of the first day of incapacity, absent extenuating circumstances. When it involves only one visit, plus continuing treatment, has been clarified to require that the visit must occur within seven (7) days of the first day of incapacity. "Periodic treatment" of a chronic serious health condition has been clarified to mean at least twice a year.

What is a Military Leave “Qualifying Exigency”?
Short-notice deployment; military events and related activities; childcare and school activities; financial and legal arrangements; counseling; rest and recuperation; post-deployment activities; and additional activities.

Intermittent or reduced schedule leave changes
Employers must calculate intermittent or reduced schedule leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave, provided it is not greater than one hour.

Substitution of paid leave for FMLA Leave
Employers may apply their normal leave policies to the substitution of all types of paid leave for unpaid FMLA leave, including vacation, personal time, PTO etc..
Bonuses entitlement: A huge change is that employees may now be disqualified from receiving a perfect attendance award due to FMLA leave.

Light duty does not count as FMLA time
Light-duty assignments do not count as FMLA leave time.

New Employer notice requirements
A general FMLA notice may be distributed by handbook, or to each new employee upon hire, rather than requiring that it be distributed to all employees annually as the old regulation required. Employers now have to notify employees of their eligibility to take FMLA leave within five (5) business days (was two), and have five (5) business days in which to notify employees in writing of whether or not leave is designated as FMLA leave and other information set forth on the new response form.

Employee notice requirements defined:
Employers may require employees to follow their usual notice and procedures for requesting leave, so long as the employer's usual reporting procedure is not more stringent than the FMLA allows.

Medical provider contact expanded:
Employers may now contact the employee's health care provider directly and without the employee's consent. The direct supervisor is prohibited from making contact. Employees can also be required to sign a HIPAA release to allow the employer to obtain medical information.

Brand New FMLA Forms
The are 5 new forms and a mandated notice published with the final rules

Updated FMLA Policy
Beginning January 15, 2009 all existing employer FMLA policies and forms will be out of compliance.

5 Practical Human Resources Steps Alabama Employers Need to Take Now to Brace for FMLA Changes:
  1. Update your FMLA Policy
  2. Update all your FMLA Forms
  3. Audit all your leave procedures
  4. Train all Supervisors on the new procedures and their key roles
  5. Update your posters
Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at

Sunday, November 9, 2008

Obama Employment Law

Brace Yourselves for HR “CHANGE”!
Reprint - Opelika & Auburn News, Sunday, Nov. 9, 2008

The election of Barack Obama has some Alabama employers quaking in their boots. Look into the crystal ball and prepare for dramatic changes in employment law and labor activity from unions to sick leave to ergonomics. Employers can expect to see more new workplace regulations now than during any time in the last two decades. The Democrats are teeing up several bills, and some issues demand attention immediately.

Employee (Union) Free Choice Act?
One issue looms far above all the others for Alabama Employers -- the Employee Free Choice Act (EFCA). Obama supports the Employee Free Choice Act. This legislation would make it easier for unions to organize and would require the National Labor Relations Board (NLRB) to certify a union if a majority of the employees sign cards in support of the union. Employees could sign authorization cards before a company even gets wind of a union drive. Under current rules, union elections must be conducted by secret ballot (unless the employer agrees to a card-check format). Obama also supports legislation that would overrule NLRB decisions defining “supervisor” (supervisors are ineligible to join unions). Most troubling for employers is a provision in the proposed legislation that states when the employer and the union can not agree on a contract within 90 days, either party can ask for federal mediation -- which could lead to binding arbitration at which time an arbitrator would set wages and benefits. Employers fear such "first-contract arbitration" would take away a great deal of their flexibility in employment decisions, and make them less competitive and profitable. The EFCA also expands penalties for violations of the National Labor Relations Act, including penalties of up to $20,000 per offense, treble back pay, and increased use of injunctions to remedy alleged violations. Nothing in my 28 years working as a management labor attorney, including the Civil Rights Act of 1991, FMLA and ADA, would change our labor and employment laws as dramatically as passage of the EFCA.

The Healthy Families Act.
This bill would require employers with at least 15 employees to provide seven paid sick days per year. The measure failed to gain traction during the previous session of Congress, but was co-sponsored by Obama in the Senate. Once the paid leave Pandora’s box is opened, expect the Democrat-controlled Congress to gradually expand the number of additional paid sick days.

The Lilly Ledbetter Fair Pay Act.
This bill, aimed at reversing a Supreme Court ruling, would make it easier for employees to sue for pay discrimination. Each time an employee receives a paycheck or pension payment, the time period for filing a claim would be restarted. The bill passed the House last year and was introduced in the Senate this year but failed to advance. Obama is a strong supporter of this measure as well.

The Civil Rights Act of 2008.
This bill would create more headaches for employers than a jackhammer in the ear. It would eliminate caps on compensatory and punitive damages awarded in discrimination cases; eliminate pre-dispute arbitration agreements (in which workers agree to arbitrate any complaints with the company, rather than in court, in order to render unenforceable any agreements already signed); and allow plaintiffs in wage-and-hour lawsuits to recover compensatory and punitive damages in addition to the back pay currently allowed. Obama was a co-sponsor of this bill in the Senate.

Ergonomics Revisited.
In 2000, the Federal Occupational Safety and Health Administration introduced ergonomic standards for the workplace. Business groups attacked the standards saying that they would cost employers as much as $100 billion to implement and the new rules were overturned by Congress in 2001. Obama strongly supports these standards.

Patriot Employer Act of 2007 (Good Employer / Bad Employer).
Would provide. This bill would give tax breaks to companies that keep jobs in the United States, maintain their corporate headquarters here, pay a certain level of wages, stay neutral during organizing drives, pay at least 60 percent of the healthcare premiums of employees, prepare workers for retirement and support workers who serve in the military. It is a blueprint showing how Obama would define who is and is nota good employer.

The Americans with Disabilities Act Restoration Act.
Effective January 1, 2009, this bill reverses four Supreme Court decisions that narrowed the definition of what constitutes a disability, thereby limiting who would be covered by the ADA. Under the Restoration Act, courts and employers can no longer consider mitigating measures, such as medicine or a device, to determine whether a person is disabled. There is more this monumental Act effects and regulations are on the way from the EEOC.

Immigration Reform - Again.
Obama supports employer use of the federal E-Verify program and increasing the number of visas allowed, but shares labor concerns that H-1B workers are sometimes used to substitute for American workers and would likely put more restrictions on how employers can use the visas. He will likely sign any reasonable bill put in front of him. Don’t expect ICE to lose its teeth under Obama.

Employer Healthcare Tax.
Obama is calling for a new national healthcare plan that would cover the 47 million Americans who don't have health insurance. Part of the cost of that plan would come from employers. Under Obama's proposal, employers that don't provide a "meaningful" contribution to their workers' health coverage will have to pay the government a percentage of their payroll. This money would go toward the national plan.

FMLA Expanded for the Small Business.
Obama wants to expand the Family and Medical Leave Act to cover smaller employers, i.e. those with 25 or more employees. Under current rules, employers with 50 or more employees are covered. He also wants to allow workers to take leave for eldercare needs, give parents up to 24 hours of leave each year to participate in their children's academic activities, and cover leave for employees to address domestic violence. He would also encourage states to adopt paid leave laws by starting a fund that could be tapped to offset costs. The Serviceman’s Act went into effect earlier this year and expect the DOL to publish sweeping new FMLA regulations before Bush leave office.

Minimum Wage Increase(s).
Obama wants to raise the minimum wage and index it to inflation. This would mean that the minimum wage would increase every year. He plans on raising the national minimum wage from $6.55 to $9.50 an hour and requiring all employers to automatically enroll workers in 401(k) or IRA plans.

Caregiver Discrimination.
The EEOC has previously adopted comprehensive guidelines prohibiting discrimination based upon gender and associations with those persons who have disabilities. Obama can be expected to support aggressive enforcement of these guidelines by the EEOC.

New DOT Drug Testing Regulations.
New drug testing regulations from the Department of Transportation became effective in the fall of 2008 which requires that every DOT policy be updated to clearly give covered employees notice of the new circumstances under which an employee's refusal is considered a DOT violation as well as information on other changes.

Independent Contractor Proper Classification Act of 2007.
Introduced in the U.S. Senate in 2007 by Obama, this bill would amend the Revenue Act of 1978 to require employers to treat workers misclassified as independent contractors as employees. The individual paid by a 1099 could, after the fact, petition the IRS for a determination of the individual's status for employment tax purposes and, if successful, seek an award of expenses, including expert witness fees and reasonable attorneys' fees for the individual against the taxpayer in any case in which the individual achieves reclassification.

Embolden EEOC, DOL & NLRB.
As the principal administrative agencies utilized by the Office of the President to pronounce and enforce his employment agenda, employers will find each of these agencies to be Waking Tigers; who many say have been in slumber mode during the Bush Administration. Any Charge of Discrimination, DOL Investigation and NLRB Charge should be treated as a serious matter and responded to by experienced legal counsel. Aggressive agendas and actions of these agencies during the Clinton Administration provides a sampling of the path that they will most likely follow in the Obama Administration.

Frightened Employers.
What really frightens employers is that all the above backlog of employment-related bills are like planes circling an airport, all ready to land with union bosses and civil-rights attorneys in charge of the tower acting as traffic controllers. There are several strategies for what steps employers need to be taking over the next few weeks and months to prepare for these immediate and long-term airport landings. Whether it's “Change We Need,” only time will tell. Clearly "Change” has come and timely risk reduction strategies are critical to success under an Obama Administration.

10 Practical Steps Alabama Employers Need to Take Now to Brace for Change.

  1. Participate in a comprehensive employment law audit;
  2. Upgrade your employee handbook and forms;
  3. Begin job posting and conduct interview training of supervisors;
  4. Institute an open-door/grievance procedure;
  5. Upgrade all job descriptions in light of new ADA defnintions of disabilities and determine essential duty requirements;
  6. Adopt “Best Place to Work” practices;
  7. Adopt/upgrade solicitation and literature distribution policy;
  8. Institute exit interview procedure;
  9. Institute effective and defensible termination procedures;
  10. Prepare to win every Unemployment Compensation case. 
Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at

Sunday, August 17, 2008

New drug testing law

New DOT Drug and Alcohol Testing Regulations: Changes Coming

Reprint - Opelika-Auburn News – Sunday, August 17, 2008(Business Section)

Effective August 25, 2008, certain newly-created U.S. Department of Transportation (“DOT”) drug and alcohol testing regulations under 49 C.F.R. Part 40 will be implemented. They contain new or revised guidance on issues related to adulterated, substituted, diluted, lab testing, MRO guidance and invalid urine specimens. East Alabama Employers of all DOT-regulated employees should prepare now to implement the following:

  • All return-to-duty (those drug tests following a violation of DOT rules before a driver can return to DOT safety-sensitive duty) and follow-up (usually 6 tests over 12 months) drug tests must be collected under the new direct observation standards.
  • The definition of “refusal to test” has been greatly expanded to include: 1) Admitting to the collector or MRO that the urine specimen was adulterated or substituted; 2) Possessing or wearing a device that could be used to hide a substituted urine specimen;
  • In the case of a directly observed collection, failing to follow the new collector/observer’s instructions to raise clothing above the waist, lower clothing and underpants, and to turn around to permit the observer to determine whether there is any device that could be used to allow the donor to substitute urine.
  • Several Part 40 definitions have been revised and new ones added.
  • Every DOT Drug and Alcohol Testing Policy is due to be reviewed and revised in accordance with these substantial regulatory changes.
The AFL-CIO’s Transportation Trades Department has asked the DOT to reconsider and stay implementation of the requirement that employees who previously received a positive test result for a banned drug provide urine specimens under direct observation as defined in the new regulation. Practical Counsel: Congress and the media have been harshly critical of the DOT for not taking effective steps to curb the rampant substitution of urine specimens by Truck Drivers, and this new regulation is the DOT’s reaction.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at