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Monday, December 28, 2009

COBRA Subsidy Extended







Alabama@Work
By: Tommy Eden, Attorney

Several Alabama families will have a bit merrier Christmas based on the fact that the Employee Benefits Security Administration (EBSA) has extended the eligibility date for the COBRA premium subsidy for two additional months, through February 28, 2010. A provision in the 2010 Defense Appropriations Act (Act) authorized the extension. All Alabama employers should become familiar with this extension and coordinate with their service providers (typically in Alabama Blue Cross) to make sure the appropriate revised notices are used. Which can be downloaded at: http://www.dol.gov/ebsa/COBRAmodelnotice.html

What the Extention Does:
• Extends the eligibility period for the COBRA in connection with the American Recovery and Reinvestment Act of 2009 (“ARRA”) premium reduction for individuals who are involuntarily terminated on or before February 28, 2010; and

• Extends the maximum period for receiving the subsidy by six months (from 9 months to 15 months). Those who had reached the end of the reduced premium period before the extension will have additional time to pay for certain subsequent coverage periods at the reduced 35% rate. For coverage periods that began prior to enactment of the Act, these individuals will need to pay 35 % of applicable premium costs by the later of February 17, 2010 (60 days after date of enactment, December 19, 2009) or 30 days after notice of the extension is provided by their plan administrator.

Employer Notice Requirement: Employers must provide an additional notice concerning the subsidy extension. The notice is required for individuals who, on or after October 31, 2009, either: 1) are “assistance eligible individuals” or experience a qualifying event (i.e. termination of employment) relating to COBRA continuation coverage. The notice must be sent within 60 days of enactment (no later than February 17, 2010), unless a qualifying event occurs after December 19, 2009. The notice must include information regarding the Act and must be sent in accordance with the general timing rules under existing COBRA regulations (44 days from the date of the qualifying event).

Retroactive Reinstatement Procedure: A separate notice is required for those who ceased to pay their COBRA premiums or paid it in full during the original
9 month subsidy period. These persons will be able to reinstate their coverage by paying the subsidized premiums.

Common Sense Counsel: All model COBRA notices and forms must be modified for use with your group health plan by inserting specific information and deleting inapplicable provisions. It is recommended that all notices be sent using the “proof of mailing” service available at the U.S. Post Office to avoid claims that you did not post in a timely manner. Penalties are $110 a day. The subsidy is an employer Federal Payroll Tax Credit on new IRS Form 941.


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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Friday, December 18, 2009

Texting Can Endanger Your Job
















Reprint Opelika Auburn News December 20, 2009
Alabama@Work
By Tommy Eden, Attorney

On December 15, 2009, the United States Supreme Court agreed to hear a highly significant case related to the expectation of employee privacy in the workplace. Police officers with the Ontario, California Police Department sued after learning that their Chief had read text messages sent from their department issued cell phones. The records were provided by a third party vendor. There were hundreds of text messages to personnel contacts, including some sexually-explicit.

The police officers won at the trial court and a deeply divided 9th Circuit Court of Appeals (the most overturned Court of Appeals in the U.S.) upheld the trial court decision finding that the officers had a "reasonable expectation of privacy" for their text messages. That finding was in part based upon evidence that a police official had informally told officers that no one would audit their text messages, if the officers personally paid for charges above a monthly allowance. The Department had a written policy stating in part as follows: "reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice." The Chief had previously condoned personal use of department-cell phones. Expect a ruling from the high court in Spring 2010.

On a similar issue involving cell phones in a criminal setting, the Ohio Supreme Court, again in a sharply divided opinion, held that Police officers must obtain a search warrant before searching the contents of a suspect's cell phone unless the officer’s safety is in danger. The issue has never before been reached by another state high court or the U.S. Supreme Court. Antwaun Smith was arrested on drug charges after he answered a cell phone call from a snitch crack cocaine user. Officers took Smith's cell phone and, acting without a warrant or his consent, searched it. The police found a call history and stored numbers evidencing that Smith had made prior calls to the drug user. The Ohio Supreme Court overturned the 12year conviction on cocaine possession, cocaine trafficking, tampering with evidence, possession of criminal tools; holding that the evidence obtained through the cell phone search was inadmissible because it violated the constitutional ban on unreasonable search and seizure. Expect this one at the U.S. Supreme Court as well.

Common Sense Counsel: As the use of computers, cell phones and text messages keeps expanding as a means of communication and commerce, electronic privacy rights of employees at work, or those charged with a crime, is front and center. For Alabama Employers it is absolutely critical that you have a written Electronic Communications policy covering cell phones, telephone systems, computers, internet use, voice mail, texting, video conferencing, pagers, PDA’s, faxes, websites visited and more. For employees it means always knowing that you can be watched, so don’t be naughty. For criminals - leave Lee County.


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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Friday, December 11, 2009

The Bad Hire Decision










Reprint Opelika Auburn News December 13, 2009
Alabama@Work
By: Tommy Eden, Attorney

Sometimes a bad hire decision can result in poor morale, an EEOC charge, a workplace injury, or in the case of former Howard Industries, Inc. HR Manager Jose Humberto Gonzalez, prison time. On December 9, 2009 Gonzalez pleaded guilty to one count of conspiracy to hire illegal immigrants in the United States Federal Courthouse in Hattiesburg, Miss. He was initially indicted on 24 counts of conspiracy and employee verification fraud in April 2009 following the August 25, 2008 U.S. Immigration and Customs Enforcement (ICE) raid at the Laurel, Miss. plant and Ellisville headquarters of Howard Industries, Inc. ICE reported it was the largest workplace raid of illegal immigrants in U.S. history with 595 arrested, nine were charged criminally with aggravated identity theft and pled guilty and many of the others left the United States. Gonzalez could receive up to five years in prison and be fined $250,000 when he returns to federal court in March 2010 for sentencing.

The April 2009 Federal Court indictment charged Gonzalez with: 1) encouraging illegal aliens to reside in the United States; 2) attempting to conceal and harbor illegal aliens; 3) falsely attesting to the validity of employment-related documents; 4) routinely hiring illegal aliens and in the process of hiring such would accept false identity documents, including alien registration receipt cards and Social Security Cards; 5) after being notified by the Social Security Administration that the Social Security numbers of certain applicants were not found to be valid, Gonzalez would nonetheless hire and continue to employ such persons; 6) would instruct employees to obtain alternative identity documents which he knew falsely represented their true identities; 7) would assure Spanish-speaking foreign nationals working at the Laurel plant that they would be warned if immigration authorities were coming to the plant; 8) falsely certifying to the employment eligibility of job applicants and employees; and 9) falsely certifying, under penalty of perjury, on Form I-9 Employment Eligibility Verifications that he had examined the documents listed on the Form I-9 and determined them to be genuine and that, to the best of his knowledge, the applicant was eligible to work in the United States, whereas in fact he had been notified by the Social Security Administration that the Social Security numbers of such applicants were not found to be valid.

Common Sense Counsel: The steps Alabama HR Managers should take to avoid their own Bad Hire Decision is best expressed in a statement by the President of Howard Industries following Gonzalez’s plea hearing. “Since before the worksite investigation, Howard Industries had taken the following immigration compliance steps:” 1) “even before it was mandated, the company voluntarily participated in identification-verification systems, whereby the federal government checked the information maintained in the government’s databases” (E-Verify) 2) “implemented a fingerprint identification system to prevent the use of false identities” and 3) “the company also retained outside legal counsel to review all of the company’s human resource processes and procedures to insure they meet or exceed all immigration compliance legal requirements.”


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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Thursday, December 10, 2009

The ADA Interactive Dance Done Right

















Reprint Opelika Auburn News December 6, 2009
Alabama@ Work
By Tommy Eden, Attorney

Driving was an essential function of the job for an account sales manager for a Coca-Cola distributor in Utah. The only problem is that he suffered severe back pain and took several impairing effect prescription painkillers, including Lorcet, Oxycontin and Duagesic patches. A concerned co-worker reported that the account manager was overusing his pain medications.

Coca-Cola had a workplace drug-and-alcohol testing policy with safety language that prohibited employees from driving company cars while under the influence of impairing effect drugs or medications. Coca-Cola ordered the account manager to submit to a workplace drug test which came back negative for illegal drugs but positive for Hydrocodone, a synthetic opiate. Coca-Cola’s medical review officer (MRO) found a significant safety risk and said the account manager should not drive a company vehicle while taking narcotic pain medication. Coca-Cola placed the account manager on leave and told him he must refrain from using impairing effect pain medications before he could return to his account manager job.

The account manager attempted to get a doctor’s note saying he was cleared to drive safely while still taking the impairing effect medications. He never got the clearance letter. Coca-Cola stood firm with its position on the safety issue. However, it did offer him other jobs that did not involve driving. He rejected those offers and quit.

The account manager sued Coca-Cola claiming it failed to reasonably accommodate his disability and forcing him into a medicine-or-job decision violated the ADA. Coca-Cola countered that this was a safety issue, not discrimination and because the account manager could not perform the essential functions of the job, he did not have ADA protection. The Utah Federal District Judge ruled in favor of Coca-Cola, granting it summary judgment. The judge rejected the claims that Coca-Cola must give him his own driver or was required to create another special position for him “in order to provide a reasonable accommodation by reassignment.”

Common Sense Counsel: First, under the ADA for an Alabama employer to prevail it must document that it has engaged in the ADA interactive process - “do the dance.” Coca-Cola presented evidence that it engaged with the employee in an ongoing dialogue on four separate occasions attempting a resolution. Second, it had a written drug and alcohol testing policy with safety language about impairing effect medications which the court cited as a legitimate reason why the account manager could not drive company cars. Third, Coca-Cola had a well drafted job description. It would not have prevailed in this case unless it could show that driving safely was an essential job function. Now it is time to examine your policies, forms and practices to see if you can properly do the ADA 3 step.

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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Monday, November 30, 2009

Sexual Harassment of Man by Female Co-Worker Costly








Reprint Opelika Auburn News November 29, 2009
Alabama@ Work
By Tommy Eden, Attorney

Just as we enter the season of the Christmas Office Party, a well know movie theater chain has some valuable lessons to teach employers when some are naughty. Regal Entertainment Group, a national movie theater chain, will pay $175,000 and furnish significant remedial relief to settle a sex discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC had charged that a Regal male employee was subjected to sexual harassment by a female co-worker and then retaliated against him for complaining about the unlawful conduct – along with two supervisors who tried to help. Knoxville based Regal Entertainment Group operates 549 theatres in 39 states.

In its lawsuit, the EEOC charged that a male employee at a Regal theater in Marina del Rey, Calif., a section of Los Angeles, was subjected to a sexually hostile workplace by a female co-worker who repeatedly grabbed his crotch. When the male victim and his direct supervisor complained to the theater’s general manager, she failed to take adequate steps to stop or prevent the harassment. Instead, she retaliated against the harassed male employee and two other supervisory employees (male and female), who were also named Plaintiffs in the EEOC lawsuit. The retaliation included unwarranted discipline, unfairly lower performance evaluations and stricter scrutiny of performance.

Sexual harassment and retaliation for complaining about it violate Title VII of the Civil Rights Act of 1964. The EEOC filed suit against Regal in the U.S. District Court for the Central District of California after first attempting to reach a pre-litigation settlement. According to EEOC data, the percentage of men filing sexual harassment charges nationwide has increased over the past decade from 12 to 16 percent of all charges involving sexual harassment.

In addition to the monetary relief, the consent decree settling the case requires Regal to: (1) provide annual anti-discrimination training to its employees; (2) closely track any future discrimination complaints to conform to its obligations under Title VII; and (3) provide annual reports to the EEOC regarding its employment practices.

Common Sense Counsel: In addition to monitoring employee Christmas Party misconduct (which is typically alcohol induced), Alabama employers need to train all supervisors on the proper responses to complaints of sexual harassment and take a hard line against retaliation. In this case the sexual harassment claim by a male was valid. But even in cases where discrimination allegation lacks merit, the law will still hold companies liable for any subsequent retaliation against the person who complained or other individuals who supported the claim or were part of the investigation.


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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Friday, November 20, 2009

Employees Everybody Wants










Alabama@WorkBy Tommy Eden, Attorney

To discern the employees you want to keep in today’s tough economic climate is critically important for all Alabama employers. In the last article we looked at 3 employees nobody wants: the Sluggard, the Deceiver and the Greedy. Now inspect your work force using Solomon's performance evaluation criteria from the Book of Proverbs for those employees everybody wants. They are going fast!

A. The Diligent. Proverbs 10:4. The Hebrew term for diligent comes from "to cut or sharpen" and in this passage it means a worker who is sharp, decisive and keen. He is able to cut through the fog of laziness and sharpen himself without hard discipline. These are his 5 characteristics:
1. He shows discipline. He knows how to avoid distractions, makes good use of his time, finds pleasure getting the maximum out of this day, you can depend on him to handle situations with efficiency and he accomplishes his goals.

2. He demonstrates an alert awareness. He is perceptive, on top of things and able to anticipate what to do without being told.

3. He is a rare and valuable tool. Proverbs 12:27. Diligent workers are a rare find, as precious as gems are in nature.

4. He is a reservoir of plans and ideas. Proverbs 21:5. Innovative thinkers, constantly creating and shaping new ideas. Proverbs 12:11, 13:4 &19

5. He renders more and better service than expected no matter the task. Matthew 5:41. He applies the ultimate law of reaping and sowing.

B. The Thoughtful Worker. Proverbs 12:10. These are his 3 characteristics:

1. He is a boss genuinely concerned about the lives of his employees. A thoughtful employer shows genuine concern and compassion for his employees. Proverbs 27:23. “He pays attention to the herd.”

2. He has understanding and insight. Proverbs 28:15-16. A good leader resists trampling others with his power. In the hands of a thoughtful boss work becomes a place of ministry and an opportunity to build into the lives of others. He affirms employes he sees doing good work. Proverbs 3:27

3. The thoughtful employee possesses at least two essential traits: 1) he is committed to his job; and 2) he is loyal to his employer. Proverbs 27:18. Solomon says practice these and your job will yield enjoyable fruit and delight and honor will come your way.

C. The Skillful Employee. Proverbs 22:29. “Do you see a man skilled in his work? He will serve before kings; he will not serve before obscure men.” If someone had looked over your shoulder last week, what would that person have witnessed? Did you do you work with efficiency and with great expertise as a skilled carpenter or master artisan? Do you work as if you were only laying bricks or building a great cathedral? Who do you work for? Colossians 3:23-24 lays out the challenge: “Whatever you do, work at it with all your heart, as working for the Lord, not for men, since you know that you will receive an inheritance from the Lord as a reward. It is the Lord Christ you are serving.”

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and nd a Sunday School teacher at First Baptist Opelika. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com 

ICE announces 1,000 new workplace audits to hold employers accountable for their hiring practices













Alabama@Work
By Tommy Eden, Attorney

Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton today announced the issuance of Notices of Inspection (NOIs) to 1,000 employers across the country associated with critical infrastructure-alerting business owners that ICE will audit their hiring records to determine compliance with employment eligibility verification laws.

"ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by cultivating illegal workplaces," said Assistant Secretary Morton. "We are increasing criminal and civil enforcement of immigration-related employment laws and imposing smart, tough employer sanctions to even the playing field for employers who play by the rules."

The 1,000 businesses served with audit notices this week were selected for inspection as a result of investigative leads and intelligence and because of the business' connection to public safety and national security-for example, privately owned critical infrastructure and key resources. The names and locations of the businesses will not be released at this time due to the ongoing, law enforcement sensitive nature of these audits.

Audits involve a comprehensive review of Form I-9s, which employers are required to complete and retain for each individual hired in the United States. I-9 forms require employers to review and record each individual's identity and work eligibility document(s) and determine whether the document(s) reasonably appear to be genuine and related to that specific individual.

Protecting employment opportunities for the nation's lawful workforce and targeting employers who knowingly employ an illegal workforce are major ICE priorities, for which ICE employs all available civil and administrative tools, including audits. Audits may result in civil penalties and lay the groundwork for criminal prosecution of employers who knowingly violate the law.

In April, DHS issued updated worksite enforcement guidance emphasizing ICE's major enforcement priorities-specifically focusing on dangerous criminal aliens and employers who cultivate illegal workplaces by breaking the country's laws and knowingly hiring illegal workers. In this strategy, ICE identified form I-9 audits as the most important administrative tool in building criminal cases and bringing employers into compliance with the law.
Statistics since implementation of new ICE worksite enforcement strategy on April 30:
45 businesses and 47 individuals debarred; 0 businesses and 1 individual were debarred during same period in FY 2008.

142 Notices of Intent to Fine (NIF) totaling $15,865,181; ICE issued 32 NIFs totaling $2,355,330 in all of FY 2008.

45 Final Orders totaling $798,179; ICE issued eight Final Orders totaling $196,523 during the same period in FY 2008.

1,897 cases initiated; ICE initiated 605 cases during the same period in FY 2008.

1,069 Form I-9 Inspections; ICE initiated 503 Form I-9 Inspections in all of FY 2008.
In July, ICE issued 654 NOIs to businesses nationwide in the largest operation of its kind before today - part of ICE's effort to audit businesses suspected of using illegal labor.

Statistics resulting from the 654 audits announced in July:
ICE agents reviewed more than 85,000 Form I-9s and identified more than 14,000 suspect documents - approximately 16 percent of the total number reviewed.

To date, 61 NIFs have been issued, resulting in $2,310,255 in fines. In addition, 267 cases are currently being considered for Notices of Intent to Fine (NIFs).

ICE closed 326 cases after businesses were found to be in compliance with employment laws or after businesses were served with a Warning Notice in expectation of future compliance.

For more information, visit http://www.ice.gov/.
Common Sense Counsel: If you are not using E-Verify for all you hiring decisions start doing so today. It does not matter if you are a federal contractor or not, it is free. As I have commented on many times in the past articles, it is the only get out of jail card offered by ICE.

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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Wednesday, November 18, 2009

DOT Issues 1st Public Interest Exclusion (PIE)-Who is Knocking at your Door?










Alabama@Work
By Tommy Eden, Attorney

The DOT drug and alcohol testing regulations provided for in its final rule a public interest exclusion (PIE) mechanism designed to protect the public from the affects of serious noncompliance by service agents. The PIE provision became effective January 18, 2001.

A service agent who engages in serious misconduct could be excluded from participating in DOT-required drug and alcohol testing for a period of time. All individuals or organizations listed here are excluded from participating in Department’s drug and alcohol testing programs until further notice.

In the Matter of: MICHAEL R. BENNETT and WORKPLACE COMPLIANCE, INC. DOT PIE No. 2009-1

Name and Address of Service Agent:
Michel R. Bennett and Workplace Compliance, Inc. in North Carolina and Texas and all other places it is incorporated, franchised, or otherwise doing business
Other Persons or Organizations:
Officers, employees, directors, shareholders, partners or individuals associated with Workplace Compliance, Inc.

Scope:
Acting as a service agent or providing any drug and alcohol testing services to any DOT regulated entity.

Duration [beginning & end dates]:
July 31, 2009 - July 31, 2014
Common Sense Counsel: If you are a DOT regulated Service Agent it is highly recommended that you get your house in order before the DOT knocks at your door. This can be done using self audits and outside audits, having employees participate in certificated training offered one of the National Associations: http://www.sapaa.com/ or http://www.datia.org/ and taking DOT inquires very seriously. Treat such inquires as if your business life depends on the correct response.


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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Monday, November 16, 2009

Employees Nobody Wants






















Alabama@Work
By Tommy Eden, Attorney

In today’s tough economic climate is important that all Alabama employers use wisdom to discern the employees you want to keep and those employees nobody wants. Perhaps it's time to inspect your work force using Solomon's performance evaluation criteria from the Book of Proverbs. Part II "Employees Everybody Wants."

A. The Sluggard. Proverbs 24:30–34. Sluggers come in all denominations. The complainers’ liturgy goes like this: “what time is it; it's not my job; this is the easiest way; what time is it; work is a drag; I don't get paid enough to do this; what time is it.” Aside being a whiner, the sluggard is characterized by six telltale signs:

1. He has trouble getting started. Proverbs 6:9. “A little sleep a little slumber," he doesn't know when he will get started to work.

2. She is restless-filled with inner plans she never implements. Proverbs 13:4; 21:25. The sluggard can be extremely creative but has trouble getting on track and is typically the “idea man."

3. He is costly to do business. Proverbs 18:9. They know how to destroy office morale, goals and accomplishments by destroying the goal of the business.

4. She is often defensive when faced with her wrong. Proverbs 26:16. Always ready with a reason for everything.

5. He is a quitter. Proverbs 12:27. Starts all endeavors with a lot of enthusiasm, but are known to have several unfinished projects.

6. She lives under self-delusional excuses. Proverbs 22:13. Channels all their creative energies into making excuses. Procrastination is their badge.

7. Solomon's counsel to the Sluggard. Proverbs 6:6-8; 26:14.

B. The Deceiver. Proverbs 11:18. This employee typically whispers things like, "no one will ever know; don't worry about it; everybody does it; this is smart business; besides they owe it to me after all the hard work I put into this company; they will never miss it.” These are their three characteristics:

1. He appears to have a life of ease, but it's really empty and without purpose. Proverbs 13:11; 15:27. It is only a matter of time before the employee is caught and shame comes.

2. The deception may be exciting initially, but it is bitter and hard to bear. Proverbs 9:17; 20:17. There is a feeling of twisted success from the theft.

3. He lacks a sense of loyalty. Proverbs 25:19. First to abandon ship and leave you stranded when hard times hit.

4. Solomon's counsel to the Deceiver. Ephesians 4:28

C. The Greedy. Proverbs 28:22. This employee is typically the get rich quick guy, "when I make my first million I will be back; all I need is just a bit more and I'll quit; I promise money means everything to me.”. These are their four characteristics:

1. He attempts to find security in money. Proverbs 11:28

2. She never slows her fanatical pursuit of riches. Proverbs 23:4-5

3. He is extremely selfish. Luke 12:15 – 20

4. She will get burned because of her greed. Proverbs 28:19–20

5. Solomon's counsel to the Greedy: Read the book of Ecclesiastes

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 a Sunday School teacher at First Baptist Opelika. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Monday, November 2, 2009

Drug Free Greeks?








Alabama@Work
By: Tommy Eden, Attorney

In March of 2007 The National Center on Addiction and Substance Abuse (CASA) came out with its report: Wasting the Best and the Brightest: Substance Abuse at America’s Colleges and Universities. This report revealed a public health crisis on college campuses and documented the harmful academic, health and social consequences that extend into the surrounding communities. The Report revealed the follows:



  • Forty-nine percent (3.8 million) of full time college students binge drink and/or abuse prescription drugs. 1.8 million of these students (22.9 percent) meet the medical criteria for substance abuse and dependence, two and one half times the 8.5 percent of the general population who meet the same criteria.


  • Only one-fifth of administrators at these institutions believe that the school bears primary responsibility to prevent alcohol and drug use among their students. The two most frequently mentioned barriers to implementing more effective substance use prevention policies and programs were that student substance abuse is seen as a normal rite of passage (37.8 percent) and limited financial resources/funding (34.3 percent).
    Between 1993 and 2005 the proportion of students using illicit drugs increased:


  • Daily use of marijuana more than doubled to 310,000;


  • Use of cocaine, heroin, and other illegal drugs is up 52 percent to 636,000;


  • Fraternity and sorority members are likelier than non-members to use marijuana (21 percent vs. 16 percent) or cocaine (3 percent vs. 1.5 percent);


  • College students who fear the social stigma attached to substance abuse (37 percent) would not seek help. Only 6 percent of students who meet the medical criteria for alcohol or drug abuse dependence seek help; and


  • 78 percent of college students who use illicit drugs have sexual intercourse compared to 44 percent of those who never use drugs. The full report can be found under “publications” at http://www.casacolumbia.org/

One Auburn University Social Fraternity House Corporation, Sigma Alpha Epsilon, has decided to set their fraternity apart and adopted a “Drug Free Fraternity Policy,” for which their national president will visit and honor them over the Homecoming weekend. The Alabama Alpha Mu Chapter of SAE at Auburn University is the first SAE Chapter in the nation to adopt such a policy of drug testing. The policy is not unlike a drug free workplace policy with a same statement of purpose, collection and testing safeguards, Medical Review Officer interview to verify a positive test, awareness training, how to locate help if a pledge or member has a problem, confidentially in reporting and clear consequences for a violation.

Common Sense Counsel: If you have a social fraternity or sorority leadership role, or in college administration, my counsel is to read the full report and consider this course of action as a risk management strategy. Do not let your best and brightest get wasted.

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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

E-Verify Extended Three Years





Alabama@Work
By: Tommy Eden, Attorney

On Oct. 28, 2009, President Obama signed H.R. 2892 which extended the expiration date for the federal E-Verify employment eligibility verification program to Sept. 30, 2012. E-Verify is a free internet-based system, operated jointly by the federal Social Security Administration and the federal Department of Homeland Security, that permits participating employers to electronically verify the employment eligibility of new hires. Recently, DHS's U.S. Citizenship and Immigration Services has posted with instructions

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=75bce2e261405110VgnVCM1000004718190aRCRD&vgnextchannel=75bce2e261405110VgnVCM1000004718190aRCRD
a revised version of its E-Verify the Supplemental Guide for Federal Contractors.

http://www.uscis.gov/USCIS/Controlled%20Vocabulary/Native%20Documents/Supplemental%20Guidance%20for%20Federal%20Contractors%20090109%20FINALa(1).pdf

Common Sense Counsel: If you are not using E-Verify for all you hiring decisions start doing so today. It does not matter if you are a federal contractor or not, it is free. As I have commented on many times in the past articles, it is the only get out of jail card offered by ICE.

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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Thursday, October 29, 2009

FMLA Military Leave Law Expanded in Defense Bill







Alabama@Work
By Tommy Eden

On Wednesday October 28, 2009, President Obama signed into law the Fiscal Year 2010 National Defense Authorization Act (HR 2647) a summary is found at: http://www.govtrack.us/congress/bill.xpd?bill=h111-2647&tab=summary

The new law includes an expansion of the recently-enacted exigency and caregiver leave provisions for military families under the Family and Medical Leave Act of 1993 (FMLA).

In January 2008, the new FMLA regulations became effective providing as follows:
Exigency leave - up to 12 weeks of leave for urgent needs related to a reservist family member’s (spouse, son, daughter, or parent) call to active service.


New - H.R. 2647 at Section 585 expands the exigency leave benefits to include family members of active duty service members. Under current law, only family members of National Guard and Reservists are eligible for “exigency leave.


Caregiver leave - up to 26 weeks of unpaid leave to an employee to care for a family member (spouse, son, daughter, parent, or next of kin) who is injured while serving on active military duty.


New - H.R. 2647 at Section 585 expands the caregiver leave provision to include veterans who are undergoing medical treatment, recuperation or therapy for serious injury or illness that occurred any time during the five years preceding the date of treatment. These provisions are effective upon enactment (i.e. October 28, 2009).

Common Sense Counsel: Review your current FMLA Policy to see if it should be updated. I suspect that the Deptartment of Labor will shortly amend their suggested forms. Stay tuned.

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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com 

Wednesday, October 28, 2009

FMLA Intermittent Leave: Same Work Loads?









Alabama@ Work
By Tommy Eden, Attorney

Reprint Opelika Auburn News 10-25-09


Debra Lewis, who worked for an Illinois School District as a bookkeeper, for 7 years had good performance reviews and when her parents became severely ill was given a flex-time schedule. She was also allowed to take work home.


Later in a closed door meeting the school board wanted Lewis fired for poor performance, but the superintendent was afraid of FMLA liability. He then offered Lewis 12 weeks of unpaid intermittent FMLA leave, which she accepted, telling her she was still expected to perform all the duties of a full-time bookkeeper. No part-time employee was hired which caused her to work unpaid nights and weekends.


Not happy with the arrangement, the school board later wanted Lewis fired and said the FMLA “ludicrous” and a "fiasco.” It was recorded on taped. The superintendent was told to build a case against Lewis based on her poor performance and that Lewis had a choice to resign or take a demotion and salary cut. Lewis took the demotion and sued under the FMLA. The school district claimed Lewis’ poor performance was a legitimate business reason to demote her. The local federal district court judge agreed with the school district citing at least 12 performance deficiencies unrelated to her absence. However, the 7th Circuit Court of Appeals recently reversed citing the school board’s hostile statements about her FMLA leave as direct evidence of FMLA retaliation and finding a jury question.


The Appeals Court held that, “a reasonable jury could conclude that the school district expected Ms. Lewis to complete all of the duties of a full-time bookkeeper while she was working on an essentially part-time basis…viewed in this way, a reasonable jury could find that the FMLA leave granted to Ms. Lewis was illusory…whether the school board decided to replace Ms. Lewis at least in part because she had inconvenienced the District by missing too many days of work under the FMLA, or whether the decision was based only on the fact that it felt that she was not a very good bookkeeper, is a question of fact that must be decided by a jury.”


Common Sense Counsel: what can Alabama employers do if an employee’s work performance suffers while taking FMLA intermittent leave? 1) Employees exercising their FMLA rights should not be held to the same production standard as full-time employees who are at work everyday; 2) do not ever record comments which show a negative bias on a tape, email, VM or memo or you will later find that smoking gun aimed at you; and 3) when faced with an FMLA leave request fill your needs with a temporary, which creates good will and is typically cheaper than hiring a lawyer.


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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

New EEOC Poster Up By November 21












Alabama@Work
By Tommy Eden

Federal law requires postings in workplaces informing individuals of their rights under federal employment discrimination laws. The Equal Employment Opportunity Commission has published a notice revising its “Equal Employment Opportunity is the Law” poster to reflect changes required by the employment provisions (Title II) of the Genetic Information Nondiscrimination Act (GINA), which become effective on November 21, 2009.

The revised poster also includes updates from the Department of Labor.
There are several ways for employers to comply with the law:

1. Print the supplement below and post it alongside EEOC’s September 2002 “EEO is the Law” poster or OFCCP’s August 2008 “EEO is the Law” poster.

o “EEO is the Law” poster supplement

2. Print and post the EEOC’s November 2009 version of the “EEO is the Law” poster.

o “EEO is the Law” poster

3. Order a new poster through the EEOC Clearinghouse at the address provided below. Please note that the EEOC poster is on backorder and will be shipped when the poster becomes available in the near future. The new poster will also be available in Spanish, Chinese and Arabic before the GINA statute becomes effective on November 21, 2009.

If you need more than ten copies of the poster contact:
U.S. Equal Employment Opportunity Commission Clearinghouse
P.O. Box 541
Annapolis Junction, MD 20701
Fax: (301) 206-9789
or call: 1-800-669-3362 (voice)
1-800-800-3302 (TTY)

To order free copies of the printed poster, complete and submit the form on the EEOC Website at http://www.eeoc.gov/posterform.html

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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Friday, October 16, 2009

Employee Genetic Information Now Protected


















Employee Genetic Information Now Protected
Alabama@Work
By Tommy Eden, Attorney
Reprinted Opelika Auburn News 10-18-09

Individuals’ genetic information (including family health history) will have greater protections through new regulations issued on October 7 by the U.S. Departments of Health and Human Services (HHS), Labor, and the Treasury. The interim final rule stated purpose is to “help ensure that genetic information is not used adversely in determining health care coverage and will encourage more individuals to participate in genetic testing, which can help better identify and prevent certain illnesses. This regulation will implement Title I of the Genetic Information Nondiscrimination Act of 2008 (GINA).”

However, GINA will have a huge impact on collection of Family Health History information by employers or group medical plans and wellness programs. “Genetic information is defined…as information about the individual's genetic tests or the genetic tests of family members, the manifestation of a disease or disorder in family members of such individual (that is, family medical history), or any request of or receipt by the individual or family members of genetic services.” Group health plans cannot: 1) increase premiums for the group based on the results of one enrollee’s genetic information; 2) deny enrollment; 3) impose pre-existing condition exclusions; 4) do other forms of underwriting based on genetic information; or 5) buy genetic information. Plans and issuers are generally prohibited from asking individuals or family members to undergo a genetic test.

GINA makes it an unfair employment practice for employers, employment agencies and others to discriminate against individuals based on “genetic information” in hiring, firing and other terms and conditions of employment. GINA also makes it unlawful to limit, segregate, or classify employees in any way that would deprive or tend to deprive them of employment opportunities because of genetic information. Remedies include compensatory and punitive damages and attorneys’ fees.

Additionally, HHS, through its Office for Civil Rights (OCR), just issued a notice of proposed rulemaking with changes to the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule to prohibit health plans from using or disclosing genetic information for underwriting purposes. Now the use or disclosure of genetic information in violation of the HIPAA Privacy Rule could result in a fine of $100 to $50,000 or more for each violation.

Regulation Notice at: http://www.dol.gov/federalregister/PdfDisplay.aspx?DocId=23182

The HHS OCR HIPAA notice of proposed rulemaking is at: www.hhs.gov/ocr/privacy


Common Sense Counsel: GINA is far reaching and vastly complicated. Rule 1 - If you think you need to ask about an employee’s family medical history for any reason - don’t. Rule 2 - do not subject your employees to any genetic testing. Rule 3 – ask your group insurer what steps it is taking to comply with GINA and you will most likely hear silence 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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Tuesday, October 13, 2009

Employment Litigation Nightmares and How to Avoid Them

















Tuesday, October 20 • 7:30 a.m. – 11:45 a.m. • EAMC Health Resource Center


Are your employees scaring you with threats of trick or treat lawsuits? Want to know the 7 scariest employment law claims and what common sense counsel you can adopt today to avoid them? Local Attorney Tommy Eden with Capell & Howard and Attorney Heather Leonard from Birmingham will take a plaintiff attorney (Heather-employee-goblins) vs. defendant attorney (Tommy-employer-under siege) approach in discussing the Top 7 litigation nightmares and how to keep the litigation ghost away. Registration deadline is October 16. Cost is $20.00 for EASHRM members and $35.00 for non-EASHRM members with breakfast included. For more information or to register, visit http://eashrm.shrm.org/.

Friday, October 9, 2009

Text Messaging Ban While Driving Savvy Business Counsel













Text Messaging Ban While Driving Savvy Business Counsel

Reprint Opelika Auburn News 10-11-09
Alabama@Work
By Tommy Eden, Attorney

On Oct. 1, 2009, President Obama released an executive order banning text messaging while driving for federal employees. As part of the executive order, federal agencies must also encourage federal contractors, subcontractors, recipients, and sub-recipients of government contracts, grants, and other agreements entered into after Oct. 1 to adopt and enforce policies that ban text messaging while driving. Text messaging while driving is already prohibited or restricted in California, Colorado, Connecticut, Delaware, District of Columbia, Illinois, Louisiana, Maine, Maryland, Massachusetts, Minnesota, New Jersey, North Carolina, Rhode Island, Utah, Virginia, Washington, and West Virginia.

The executive order titled FEDERAL LEADERSHIP ON REDUCING TEXT MESSAGING WHILE DRIVING makes the following statement of policy: “With nearly 3 million civilian employees, the Federal Government can and should demonstrate leadership in reducing the dangers of text messaging while driving. Recent deadly crashes involving drivers distracted by text messaging while behind the wheel highlight a growing danger on our roads. Text messaging causes drivers to take their eyes off the road and at least one hand off the steering wheel, endangering both themselves and others.”

In the Executive Order "Texting" or "Text Messaging" means reading from or entering data into any handheld or other electronic device, including for the purpose of SMS texting, e-mailing, instant messaging, obtaining navigational information, or engaging in any other form of electronic data retrieval or electronic data communication. "Driving" means operating a motor vehicle on an active roadway with the motor running, including while temporarily stationary because of traffic, a traffic light or stop sign, or otherwise. It does not include operating a motor vehicle with or without the motor running when one has pulled over to the side of, or off, an active roadway and has halted in a location where one can safely remain stationary.

Common Sense Counsel: with this latest action by the federal government, and the numerous states that have text messaging while driving bans, it is more critical than ever that all Alabama employers consider implementing in their Employee Handbooks a Driver Safety Policy covering: driver qualifications, what is a disqualifying driving record, general driving requirements, use of safety belts, what to do in the case of an accident and finally a wireless communication device policy like this:

Wireless Communications Devices UseEmployees cannot use wireless communications devices, including cell phones and text massagers, when driving on Company business. Drivers who need to use a wireless communications device must pull over to a safe location before using the device.

Failing to take such preventative steps now can make you an easy litigation target when your employee is involved in a serious rear end accident while texting.

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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com 

Thursday, October 1, 2009

Sears Hit on Inflexible Leave Policy



Sears Hit on Inflexible Leave Policy

Alabama@ Work

By Tommy Eden, Attorney

On Monday September 29, 2009, a Federal Judge in Chicago approved a Sears Roebuck Settlement of $6.2 Million for Disability Bias. It was the largest monetary amount ever paid in a single EEOC ADA lawsuit. The employees were allegedly terminated by Sears based on an inflexible workers' compensation leave exhaustion policy by which Sears terminated employees instead of providing them with reasonable accommodations for their disabilities.

The case arose from a charge of discrimination filed with the EEOC by a former Sears service technician, John Bava who was injured on the job, took workers' compensation leave, and while still somewhat disabled by the injuries, repeatedly attempted to return to work. It was claimed in the Complaint that Sears could never see its way clear to provide Bava with a reasonable accommodation which would have put him back to work, but instead fired him when his FMLA leave expired.
Pre-trial discovery in the lawsuit revealed that hundreds of other employees who had taken workers' compensation leave were also terminated by Sears without seriously considering reasonable accommodations to return them to work while they were on leave, or seriously considering whether a brief extension of their leave would make their return possible. It was discovered that well over a hundred former employees who wanted to return to work with an accommodation but were terminated by Sears. Some of them only found out they had been fired when their discount cards were rejected while shopping at Sears.
In addition to providing monetary relief, the three-year consent decree includes an injunction against violation of the ADA and retaliation. It requires that Sears amend its workers' compensation leave policy, provide written reports to the EEOC detailing its workers’ compensation practices' compliance with the ADA, train its employees regarding the ADA, and post a notice of the decree at all Sears locations.
The Judge will hold a final hearing in February 2010, at which time the court will make a final determination as to the fairness of the individual distributions from the $6.2 million settlement fund.
Common Sense Counsel: This record settlement sends the strongest possible message that the EEOC will use its enforcement authority boldly to protect those rights and advance equal employment opportunities for individuals with disabilities. Employers should no longer apply an inflexible and universal leave limits policy without seriously considering the reasonable accommodation requirements of the ADA. In light of this case it is important that all Alabama employers amend their workers' compensation leave policies, educate yourself on the workers’ reasonable accommodation compensation practices in compliance with the ADA and train supervisors regarding the ADA 

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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com 

Thursday, September 24, 2009

Sweeping ADA Regulations Issued












Sweeping ADA Regulations Issued

Alabama@Work

By Tommy Eden, Attorney

Reprint O&A News 9-27-09

The Equal Employment Opportunity Commission (EEOC) on Wednesday published a Notice of Proposed Rulemaking in order to implement the ADA Amendments Act of 2008 (ADAAA). The 7 major changes include:

What now constitutes a “Disability”?

Under the current ADA a disability is (i) an impairment that substantially limits one or more major life activities, (ii) a record of such an impairment, or (iii) being regarded as having such an impairment. The proposed regulations will now: 1) Broadly interprets the definition of “disability”; 2) The impairment need not “significantly” or “severely” restrict a major life activity in order to meet the standard, but merely “substantially limits”; and 3) Expands the definition of “major life activities” by providing two categories of included major activities and functions:
ü What are Major Life Activities? caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working;
ü What are included Major Bodily Functions? the immune system, special sense organs, and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions - with examples such as cancer, epilepsy, HIV and AIDS;
4) Mitigating measures eliminated, other than ordinary eyeglasses or contact lenses, in determining whether an individual has a “disability”;
5) Classifies as a Disability an impairment that is episodic or in remission if it would substantially limit a major life activity when active (such as epilepsy or asthma controlled by medication);
6) “Regarded as Disabled” will have the most significant change as it no longer requires that the employer perceived the individual to be substantially limited in a major life activity. Now an applicant or employee who is subjected to an action prohibited by the ADA (not hired, denied promotion, fired or 10 other actions) because of an actual or perceived impairment, or symptoms of an impairment, will meet the “regarded as” definition of disability; and
7) Limits an employer’s ability to use selection criteria in employment decisions by prohibiting the use of qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual with a disability unless shown to be job-related for the position in question and consistent with business necessity.
After the 60-day public comment period the EEOC will issue final regulations and provide an effective date. To view the entire 20 page Federal Register filing see: http://edocket.access.gpo.gov/2009/pdf/E9-22840.pdf
Common Sense Counsel: All Alabama employers should brace themselves. The “Regarded as Disabled” is a far reaching change that will affect every employer with 15 or more employees. Supervisory ADA Training, New Interview Procedures, New Interactive Accommodation Steps, Handbook Updates, and Job Description Essential Functions Upgrades are strongly encouraged before the final regulations are issued.

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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com 

Sunday, September 13, 2009

New IRS Retirement Security for American Families


New IRS Retirement Security for American Families

Alabama@Work

By Tommy Eden
On September 5 the IRS issued sweeping guidance for Employers and Employees on “Helping Americans Save for the Future” It is well worth the time of all Alabama Employers and Employees to review the new savings options which include:
Guidance to make saving and choosing a retirement plan easier by:
ü expanding opportunities for automatic enrollment in retirement plans,
ü making it easier to save tax refunds,
ü showing how employees can save payments they would receive for unused vacation or other similar leave in their retirement plan, and
ü helping employees and employers understand their -
ü tax-favored rollover and other savings options, and
ü retirement plan design options. Detailed information with web links at:http://www.irs.gov/retirement/article/0,,id=212061,00.html
Automatic Enrollment
boosting participation in 401(k) and SIMPLE IRA plans. The Treasury and IRS have issued the following guidance on automatic enrollment as part of the retirement and savings initiatives:
ü Revenue Ruling 2009-30 demonstrates ways a 401(k) plan sponsor can include automatic contribution increases in its plan.
ü Notice 2009-65 provides sample automatic enrollment plan language that a 401(k) plan sponsor can adopt with automatic IRS approval.
ü Notice 2009-66 includes guidance to help small employers add automatic enrollment to their SIMPLE IRA plans.
ü Notice 2009-67 provides sample automatic contribution language that a SIMPLE IRA plan sponsor can adopt with automatic IRS approval.
Receive Your Tax Refund as U.S. Savings Bonds
For the upcoming 2010 filing season, with a simple check of a box, taxpayers will be able to convert their income tax refunds into I Savings Bonds - even without a bank account or an existing account with Treasury. In future years, taxpayers will be able to purchase I Bonds for their children or grandchildren just as easily. Learn more with these Questions & Answers.
Save Payments You Would Receive for Unused Vacation or Other Similar Leave
through contributions to retirement plans. Many employees receive substantial cash payments for unused vacation or other similar leave at termination of employment or even annually during employment. The Treasury and IRS have issued the following guidance on contributions in lieu of leave:
ü Revenue Ruling 2009-31 addresses annual contributions of payments employees would receive for unused vacation or other similar leave to an ongoing defined contribution plan, whether as employer contributions or elective 401(k) contributions.
ü Revenue Ruling 2009-32 addresses similar contributions at termination of employment.
Roll Over Retirement Distributions into IRAs or Other Plans
A key risk to lifetime savings is when an employee spends his or her lump sum payment, instead of electing to roll over the payment to an IRA or other retirement plan (rollover chart).
Notice 2009-68 simplifies the presentation of an employee’s options when receiving an eligible rollover distribution. It provides a rollover roadmap that satisfies the required notice that must be provided to employees taking their retirement assets. The notice also reflects law changes (such as information on a distribution from a designated Roth account under an employer plan) and explains rules that apply in special situations (such as when a distribution is made to a surviving spouse or other beneficiary).
Understanding Retirement Plan Options
IRS.gov has made it even easier for employers to understand their tax-favored retirement plan options and to choose the right plan for their employees as well as their business.
Life Events that Can Affect Retirement Savings provides more information on major life events that can affect your retirement planning like starting a job, terminating employment and catching-up on contributions for missed years of opportunity.
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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com 

Alabama Jury Service is Protected Finds Federal-Mogul


Alabama Jury Service is Protected Finds Federal-Mogul
Alabama@Work
Tommy Eden, Attorney
Rebecca Boutwell, an Alabama factory worker was found entitled to a jury trial of her Alabama state law claim that Federal-Mogul Corp. fired her solely because she served on a Limestone County Circuit Court jury. The U.S. Court of Appeals for the 11th Circuit in Atlanta recently ruled that there was creditable evidence that she complied with the call-in procedure but was still fired while actively serving on a jury.
Kelly Services assigned Boutwell to Federal-Mogul's Athens facility on the 11 pm - 7 am shift Sunday evening through Friday morning. Shortly after she started Boutwell was summoned to appear for jury duty. Her Federal-Mogul supervisor told her that she was excused from working the night shift before her Monday morning court appearance, but that she would be required to call on Monday if she was picked to serve on a jury, and would have to call in each day she was required to serve on the jury. Boutwell was selected to serve on the jury. She called Federal-Mogul's main telephone line and left messages on Monday and Tuesday that she would be reporting to the courtroom until the trial ended. Company policy was that employees were required to call in absences to a supervisor's cell phone, not the main line, but that issue was hotly disputed. On Thursday her Supervisor reported to Federal-Mogul that Boutwell had not called in and she was fired.
Boutwell later filed a wrongful discharge lawsuit against Federal-Mogul and Kelly Services in the U.S. District Court for the Northern District of Alabama and both companies filed motions for summary judgment, which the district court granted. Boutwell appealed to the 11th Circuit which held that under Alabama law, an at-will worker may be terminated by an employer for any reason, or for no reason at all. However, Code of Alabama § 12-16-8.1(a), provides that “[n]o employer in this state may discharge any employee or subject any employee to an adverse employment action solely because he or she serves on any jury empaneled under any state/federal statute.” The 11th Circuit found an issue of fact in that Boutwell produced home telephone records showing that she had made calls to the main number several times during her absence. Summary judgment for Kelly Services was upheld because it later offered to place her in another position.
Common Sense Counsel: Courts at all levels are highly protective of jurors. The Jury system is the bedrock of the American Judicial System and is one of the most protected employment categories by Judges. All Alabama employers should have a jury service policy in conformity with the law. Think long and hard before you take any adverse employment action during active jury service or in close proximity to jury service.
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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com