Search This Blog

Friday, July 31, 2009

New Direct Observation Effective August 31, 2009

DOT Drug Tests – New Direct Observation Effective August 31, 2009

Repirint O&A News 08/02/09
On August 25, 2008 the DOT revised its drug and alcohol testing regulations (49 CFR Part 40) to stem the adulteration and substitution of urine specimens of regulated employees covered under the FMCSA, FAA, PHMSA, FRA, FTA and Coast Guard. Under this new DOT rule, all return-to-duty and follow-up drug tests are to be collected under direct observation. (49 CFR Part 40.67 “As the observer, you must request the employee to raise his or her shirt, blouse, or dress/skirt, as appropriate, above the waist; and lower clothing and underpants to show you, by turning around, that they do not have a prosthetic device. After you have determined that the employee does not have such a device, you may permit the employee to return clothing to its proper position for observed urination”). This new DOT direct observation (DO) regulation was challenged by over 20 transportation unions who argued that the revised regulation violated the Fourth Amendment’s prohibition on unreasonable searches and seizures. The Court in BNSF Railway Co. v. U.S. Dep’t of Transportation (D.C. Cir. May 15, 2009) disagreed, upheld the DOT, and found as follows:

1) DOT had presented voluminous evidence of the increased availability of products designed to beat a drug tests (see Google-“beat a drug test);

2) DOT acted reasonably in limiting the direct observation rule to situations posing a high risk of cheating:

3) Employees returning to work after drug treatment have a heightened incentive to cheat;

4) DOT presented data that “the violation rate for return-to-duty and follow-up testing is two to four times higher than that of random testing;”

5) The government’s interest in transportation safety is “compelling,” and given the number of creative cheating devices, “we have little difficulty concluding that direct observation furthers the government’s interest in effective drug testing.”

6) Given the employees’ choice to work in a regulated industry, the employees’ prior positive test or refusal and the flood of cheating devices, the DOT “reasonably concluded that direct observation necessary to render these drug tests – needed to protect the traveling public from lethal hazards – effective.”

Practical Counsel: This DO drug testing rule is applicable to return-to-duty, safety-sensitive transportation industry employees who have already failed or refused to take a prior drug test. The start date for mandatory DO for return-to-duty and follow-up testing is August 31, 2009. All employees who go for return-to-duty and follow-up tests on and after the effective date must have their collections observed. This includes employees currently in follow-up testing programs who will still be in those programs on and after August 31st. All DOT policies which have not been upgraded since August 25, 2008 are most likely out of compliance and subject to DOT audits and fines of up to $10,000.

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

When Your Employer Offers You a Severance Agreement

What to Do When Your Employer Offers You a Severance Agreement

Repirint O&A News 07/26/09

In economic downturns it is good that both employers and employees understand what can and can not be included in a valid Severance and Release Agreement:

Make sure that you understand the agreement
If you are 40 or older, inform your employer that the law requires your agreement to be written in a manner that makes it easy to understand. Usually this means that your agreement should not contain technical jargon or long, complex sentences, or tiny type.
Check for deadlines and act promptly
The moment you are given a severance agreement, check to see if your employer gave you a deadline for accepting, or declining, the agreement. If you are 40 years old or older, federal law requires the employer to give you at least 21 days to review the agreement and make up your mind.

If you are being rushed, ask for more time. Put your request in writing. If you are 40 or older and your employer is asking you for a decision in fewer than 21 days, remind the employer that the law requires you to be provided at least 21 days. (If you and at least one other person are being laid off in a reduction in force (RIF) at the same time, you must be given 45 days to consider the agreement.)
Consider having an attorney review the severance agreementEven if you are parting amicably with your employer, you may want to ask for advice about whether you should sign it, whether the terms are reasonable, and whether you should ask your employer to change any of the terms.
If you are at least 40 years old, the agreement must advise you to consult with an attorney.
Make sure you understand what you are giving up in exchange for severance pay or benefits
The main benefit to signing an agreement is that you will receive a cash payment or benefits in exchange for signing away your right to bring certain legal claims against your employer.
Make sure that the agreement offers you something of value to which you are not already entitled.
Review the agreement to ensure that it does not ask you to release non-waivable rights
Confirm that your employer is not asking you to waive your right to file a charge, testify, assist, or cooperate with the EEOC.
Make certain that the agreement is not asking you to waive rights or claims that may arise after the date you sign the waiver.
Make sure that your employer is not asking you to release your claims for unemployment compensation benefits, workers compensation benefits, claims under the Fair Labor Standards Act, health insurance benefits under the Consolidated Omnibus Budget Reconciliation Act (COBRA), or claims with regard to vested benefits under a retirement plan governed by the Employee Retirement Income Security Act (ERISA). See all the new EEOC guidance published on July 15, 2009 at

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 

Friday, July 17, 2009


Loose ADEA Lips Can Sink Companies

Repirint O&A News 07/19/09

In Gross v. FBL Financial Services, Inc. decided by the United States Supreme Court on June 18, 2009, the high Court ruled by a 5-4 vote, that under the federal Age Discrimination in Employment Act (“ADEA” 29 U. S. C. §623(a)), employees alleging disparate treatment based on age must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action.

Jack Gross, age 54, worked for FBL Financial Group (“FBL”) as a claims administrator until he was reassigned to the position of claims project administrator, while most of his previous duties were transferred to the newly-created position of claims administration manager. The Manager position was given to an employee in her early 40s who Gross once supervised. Gross sued for age discrimination and a jury awarded Gross $46,945 in lost wages. FBL’s appealed the trial judge’s “mixed-motive” jury instruction and the U.S. Court of Appeals for the Eighth Circuit reversed and remanded the case holding that ADEA plaintiffs must present “direct evidence” of age discrimination.

Gross appealed to the U.S. Supreme Court on the question of whether a plaintiff must present direct evidence of discrimination in order to obtain a “mixed-motive” jury instruction in a non-Title VII discrimination case. A “mixed-motive” instruction tells the jury that if it finds the plaintiff has shown that both legitimate and illegitimate reasons motivated the employment decision, the burden of persuasion shifts to the employer. In order to limit or avoid liability, the employer must then demonstrate that it would have reached the same decision based on a non-discriminatory reason. “Mixed-motive” is the standard in claims brought under Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, religion, sex or national origin.

The Supreme Court answered: “Title VII, which has been amended to explicitly authorize discrimination claims where an improper consideration was “a motivating factor” for the adverse action, see 42 U. S. C. §§2000e–2(m) and 2000e–5(g)(2)(B), the ADEA does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor.” FBL Wins.

Practical Counsel: Direct evidence of age discrimination constitutes an expression typically made by the decision maker such as “this old dog just won’t hunt anymore” or a supervisor’s comment on multiple occasions that plaintiff “has been around since Christ was a baby”. Accordingly, train your managers never to use age related expressions in their evaluations of employees and your company should not be an ADEA casualty. Senator Patrick Leahy (D-Vt.) criticized the opinion as “wrong-headed” comparing it to the Court’s 2007 ruling in Ledbetter v. Goodyear Tire, which Congress overturned with the Lilly Ledbetter Fair Pay Act of 2009. So look for Congress to seek to reverse by legislation on this issue as well.

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 

USCIS issues Guidance on Employmnet Eligibility Verification Form

U.S. Citizenship and Immigration Services(USCIS) has announced that the Employment Eligibility Verification Form 1-9(Rev. 02/02/09) currently on the USCIS web site will continue to be valid for use beyond June 30, 2009. USCIS has requested that the Office of Management and Budget(OMB) approve the continued use of the current version of Form I-9. While this request is pending, the Form I-9(Rev. 02/02/09) will not expire. USCIS will update Form I-9 when the extenstion is approved. Employers will be able to use either the Form I-9 with the new version date or the Form I-9 with the 02/02/09 revision date at the bottom of the form. For more information, visit

Friday, July 10, 2009

E-Verify Mandated for All Federal Contractors Starting Sept 8

Reprint: Opelika-Auburn News, July 12, 2009 

Department of Homeland Security (DHS) Secretary Janet Napolitano announced on July 8 the Obama Administration’s support for a regulation that will award federal contracts only to employers who use E-Verify to check employee work authorization starting September 8. Secretary Napolitano also announced the Department's intention to rescind the Bush Administration’s Social Security No-Match Rule, which has never been implemented and has been blocked by court order, in favor of the more modern and effective E-Verify system. Napolitano stated: “E-Verify is a smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce…Requiring those who seek federal contracts to use this system will create a more reliable and legal workforce. The rule complements our Department’s continued efforts to strengthen immigration law enforcement and protect critical employment opportunities.” It is estimated that 168,000 additional federal contractors will register and begin using E-Verify by the deadline.
E-Verify, which compares information from the Employment Eligibility Verification Form (I-9) against federal government databases to verify workers’ employment eligibility, is a free web-based system operated by DHS in partnership with the Social Security Administration (SSA). The system facilitates compliance with federal immigration laws and helps to deter unauthorized individuals from attempting to work and also helps employers avoid employing unauthorized aliens.

The federal contractor rule extends use of the E-Verify system to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. The Administration will push ahead with full implementation of the rule, which will apply to federal solicitations and contract awards Government-wide starting on September 8, 2009. On average, 1000 employers sign up for E-Verify each week, totaling more than 134,000 employers representing more than half a million locations nationwide finding that 96.9 percent of all queries run through E-Verify are automatically confirmed work-authorized within 24 hours.

In May 2008, DHS added access to naturalization database records which increased the program’s ability to automatically verify naturalized citizens’ status, reducing citizenship-related mismatches by 39 percent. Additionally, in February 2009, the agency incorporated Department of State passport data in the E-Verify process to reduce mismatches among foreign-born citizens. Other initiatives underway will bring further improvements to Federal database accuracy; add new tools to prevent fraud, misuse, and discrimination; strengthen training, monitoring, and compliance; and enhance privacy protections.

Practical Counsel:
· Sign up for E-Verify ASAP at whether you are a federal contractor or not (it is an employer’s only get out of jail card with ICE);
· Schedule I-9 Supervisor Training because the E-Verify system is only as good as the information collected on your I-9 forms;
· Put an E-Verify policy in your employee handbook;
· Make sure you are using the latest version of Form 1-9; and
· Work with your industry association for compliance training.

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 

Thursday, July 2, 2009

Businesses Nationwide Served With I-9 Audit Notices

Businesses Nationwide Being Served With I-9 Audit Notices

Reprint: Opelika-Auburn News, July 5, 2009

The U.S. Immigration and Customs Enforcement (ICE) is launching a bold, new audit initiative today by issuing Notices of Inspection (NOIs) to 652 businesses nationwide - which is more than ICE issued throughout all of last fiscal year. The notices alert business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with employment eligibility verification laws and regulations. Inspections are one of the most powerful tools the federal government has to enforce employment and immigration laws. This new initiative illustrates ICE's increased focus on holding employers accountable for their hiring practices and efforts to ensure a legal workforce.

"ICE is committed to establishing a meaningful I-9 inspection program to promote compliance with the law. This nationwide effort is a first step in ICE's long-term strategy to address and deter illegal employment," said Department of Homeland Security Assistant Secretary for ICE John Morton as posted at

Employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This form requires employers to review and record the individual's identity document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual.

In FY 2008, ICE issued 503 similar notices throughout the year. In April, ICE implemented a new, comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation's lawful workforce. Under this strategy, ICE is focusing its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly employing illegal workers. The nationwide initiative is a direct result of this new strategy and ICE is now re-emphasized its commitment to seek criminal prosecutions of employers in lieu of civil fines as was a common strategy under the Bush Administration.

Practical Counsel: Getting Ready For the Knock or Envelope
An employer’s receipt of an I-9 audit inquiry or notice should be treated as the preliminary step in determining whether ICE will initiate a criminal investigation and prosecution. Even if a criminal investigation does not follow, employers found with I-9 violations could face substantial civil fines. The Does and Don’ts of I-9 Compliance:
  • Do call your labor lawyer if your receive a notice, call, visit, etc and be prepared to respond promptly;
  • Don’t take any action that could be viewed as intentional alerting or tampering with your completed I-9s forms and backup documents;
  • Do start an internal review of your complete I-9 processes, storage systems and supervisor training;
  • Do have an internal I-9 audit and take corrective actions on defective I-9s;
  • Don’t destroy any defective I-9 form, just staple to the back of the new form;
  • Do consider use of E-Verify as your only “get out of jail card.” (my prior article published on May 29, 2009) 
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