Search This Blog

Monday, August 31, 2009

Mandatory Direct Observation for DOT Return-to-Duty and Follow-Up Testing
By Tommy Eden, Attorney
Effective today, August 31, 2009, Direct Observation collections are mandatory for all DOT Return-to-Duty and Follow-Up drug testing.
On May 15, 2009, the United States Court of Appeals for the District of Columbia Circuit unanimously upheld DOT’s direct observation drug testing rules applicable to return-to-duty, safety-sensitive transportation industry employees who have already failed or refused to take a prior drug test. The Court found that the rules were not arbitrary or capricious and did not violate the Fourth Amendment constitutional prohibition on unreasonable searches and seizures.
Because there was an opportunity for the parties to seek rehearing of the Court’s ruling, the Court’s stay of the direct observation rule continued in effect. The Court issued a Mandate on July 1, 2009, which finalized the decision, thereby lifting the stay on Direct Observation for return-to duty and follow-up testing. We published an amendment to Part 40.67(b) on July 30, 2009, reinstating the Direct Observation requirement, effective August 31, 2009.
As with other DOT Direct Observation collections conducted since August 25, 1998, DOT Return-to-Duty and Follow-up drug testing will now require that a same gender observer check for prosthetic and other devices that could be used to cheat a drug test. This is in addition to the observer’s subsequently watching the employee urinate into the collection container.
DOT’s 49 CFR Part 40 directly observed collections are authorized and required only when:
● The employee attempts to tamper with his or her specimen at the collection site.
o The specimen temperature is outside the acceptable range;
o The specimen shows signs of tampering ~ unusual color / odor / characteristic; or
o The collector finds an item in the employee’s pockets or wallet which appears to be brought into the site to contaminate a specimen; or the collector notes conduct suggesting tampering.
● The Medical Review Officer (MRO) orders the direct observation because:
o The employee has no legitimate medical reason for certain atypical laboratory results; or
o The employee’s positive or refusal [adulterated / substituted] test result had to be cancelled because the split specimen test could not be performed (for example, the split was not collected).
● The test is a Follow-Up test or a Return-to-Duty test.
Below are the following downloadable documents from the DOT:
Practical Counsel: All DOT policies and employee sign offs need to upgraded to mirror these mandated changes and avoid DOT fines of up to $10,000 per violation.

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 30, 2009

Huntsville tells vendors to verify workers with E-Verify

Huntsville tells vendors to verify workers with E-Verify

Sunday, August 30, 2009

By Steve Doyle

Huntsville Times Staff Writer

Getting a job with a Huntsville city government contractor just got a little more complicated.

Starting Jan. 1, city vendors will be required to screen prospective hires using the federal government's E-Verify system. The City Council approved the change with little discussion Thursday night. Councilman Bill Kling, who pitched the new rule, called it a "very modest proposal" to try to deter illegal immigration in a way that won't get the city sued.

"This is about the best we can do," he said before the vote. "We're not going to be a test case. We're not going to spend hundreds of thousands of dollars in tax money trying to defend something in court."

Kling noted that two lawyers - City Attorney Peter Joffrion and Mike Fees, the city's outside expert on immigration law - helped draft the policy.

Madison County, Decatur and Albertville already require most vendors hired under competitive bid laws to use E-Verify.

The free online system allows companies to verify the employment status of prospective hires by submitting names and Social Security numbers to the Social Security Administration and Department of Homeland Security. Huntsville’s E-Verify rule applies to vendors with City contracts totaling $15,000 or more and that 411 vendors will be required to enroll in E-Verify. The policy passed the Council unanimously and Mayor Tommy Battle supports it.

Saturday, August 29, 2009

Lowe’s Pays $1.7 M to Settle Harassment Lawsuit

Lowe’s Pays $1.7 M to Settle Harassment Lawsuit reprint OA News 8-30-09

By Tommy Eden, Attorney


A major settlement was announced earlier this week of a discrimination lawsuit under Title VII of the Civil Rights Act against Lowe’s Home Improvement Warehouse, Inc. for $1.72 million and significant remedial relief on behalf of three employees in their twenties who were subjected to a pervasive sexually hostile work environment and retaliated against for complaining about it. Lowe’s has 1,525 stores throughout the United States and Canada.
Specifically, the EEOC alleged in its Complaint that the female employee, age 21 at the time, was sexually assaulted by the 44-year-old male store manager in his office at a Lowe’s store in Longview, Wash. Prior to the alleged assault, the Complaint states that she was implicitly propositioned for sex by the manager related to a recent promotion she received and that Lowe’s not only failed to take prompt remedial action to stop the sexual harassment, but also fired the three victims in the case.
In addition to the $1.7 in monetary relief for the three victims, the three-year consent decree resolving the case requires Lowe’s to:
· Provide comprehensive training to management, non-management, and human resources employees in all Washington and Oregon stores;
· Employees will be trained on what constitutes harassment and retaliation, and on their obligation not to harass or retaliate against any individual;
· Managers and supervisors will be trained on what constitutes harassment and retaliation, their obligation to provide a discrimination-free work environment, and their responsibilities if an employee complains about harassment or retaliation, or if they observe it;
· Human resources personnel will be trained on what constitutes harassment and retaliation, how to institute policies and practices to correct past discrimination and prevent future occurrences, informing complainants about the outcome of internal investigations, and the steps Lowe’s will take to assure a discrimination-free workplace in the future;
· Requires Lowe’s to revise its sexual harassment and anti-retaliation policies;
· Issue an anti-harassment statement to all employees in Washington and Oregon;
· Revise its method for tracking employee complaints of harassment: and
· Report regularly to the EEOC on harassment and retaliation complaints which arise in Washington and Oregon stores during the term of the decree.
Practical Counsel: No worker, regardless of gender or other discriminatory factors, should ever have to endure harassment in order to earn a paycheck. As this case proves, the EEOC continues in its full press litigation mode. Harassment claims are by far the most costly and destructive to the fabric of any business. The policy upgrade, training, and internal investigations listed in this consent decree are exactly what every Alabama employer should do before they become a story headline.

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, August 21, 2009

Swine Flu: Managing the Workplace

Swine Flu: Managing the Workplace
By Tommy Eden, Attorney
reprint O&A News 8-23-09
U.S. health officials declared earlier this week a public health emergency due to the spread of H1N1 (Swine) Flu, the World Health Organization has raised the influenza pandemic alert and we now have several cases reported locally. As a practical matter every Alabama employer should do the following: provide antibacterial hand sanitizers, frequently clean common surfaces (door knobs, coffee pot, etc.), be prepared to voluntarily extend your time-off policies, encourage contagious employees to stay home, allow remote work from home if possible and curtail business travel. All employers must be prepared to address employee concerns about the illness and one way to do that is on Monday to post a notice similar to the one below:
The recent outbreaks of swine flu have been widely covered in the media. You may be wondering what you can do. There are several precautions each of us can take to reduce the spread of illness, including swine flu, at work. If you develop flu-like symptoms, please do not come to work until you are fully recovered in order to keep others from getting sick, and follow company policies for providing notice of your absence. You may find the following Q & A helpful.
How do you catch swine flu?
Through contact with a person with swine flu. Human-to-human spread of swine flu has been documented and is thought to occur in the same way as seasonal flu. Influenza is thought to spread mainly through coughing or sneezing of infected people.
How long can an infected person spread swine flu to others?
People with H1N1 influenza virus should be considered potentially contagious as long as they are symptomatic and possible for up to 7 days following illness. Children, especially younger children, might potentially be contagious for longer periods.
What can I do to protect myself from getting sick?
There is no vaccine available right now to protect against swine flu. There are everyday actions that can help prevent the spread of germs that cause respiratory illnesses like influenza. Take these steps to protect your health:
· Cover your nose and mouth with a tissue when you cough or sneeze.
· Throw the tissue in the trash after you use it.
· Wash your hands often with soap and water, especially after you cough or sneeze. Alcohol-based hand cleaners are also effective.
· Avoid touching your eyes, nose or mouth. Germs spread this way.
· Avoid close contact with sick people.
We are committed to providing a safe and healthy workplace. Together, we can take significant steps to minimize illness at our workplace. For more information please visit: or

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, August 20, 2009

Company Pays Up to Settle Sex Suit

Company Pays Up to Settle Sex Suit

Reprint O&A News 8-16-09

R-Anell Housing Group, LLC, an upscale manufacturer of pre-fabricated commercial structures and custom modular homes, has agreed to pay $200,000 and provide significant injunctive relief to settle a sex discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC) on behalf of several female employees. R-Anell’s moto is “Our passion is to build what you imagine” However, they never imagined the EEOC’s passion to prosecute.
According to the EEOC court-filed complaint against R-Arnell the company:

  • refused to hire Amy Hall and a class of similarly situated female applicants because of their sex;

  • engaged in gender-based discriminatory hiring practices at its Cherryville, N.C., manufacturing facility beginning as early as 2004, and at a manufacturing facility previously operated in Denver, N.C., beginning as early as 2003;

  • maintains a sex-segregated workforce that had the effect of denying female employees equal employment opportunities;

  • failed to preserve applications and personnel records as required by law; and
    excluded all women – half the population and half the talent pool – from the workplace.
In addition to the $200,000 in back pay and compensatory damages, the four-year consent decree resolving the case (EEOC v. R-Anell Housing Group, LLC, in U.S. District Court for the Western District of North Carolina) includes injunctive relief enjoining R-Anell Housing from engaging in sex discrimination or retaliation. The consent decree also requires recruitment and hiring efforts directed toward employing women; anti-discrimination training; the posting of a notice about the EEOC; preservation of applications and personnel records by the company; and reporting by the company concerning its recruitment efforts and hiring.
Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District Office, said, “Sex discrimination in hiring continues to be an issue in the 21st century workplace. This is particularly in non-traditional fields for women, such as construction. Employers must be careful to give equal consideration in hiring to both genders, regardless of the work involved. The EEOC will continue to enforce workplace civil rights laws vigorously to remedy and eradicate sex discrimination.”
Practical Counsel: To say that the EEOC is on a mission would be an underestimate. EEOC case filing activity in direct federal court actions against employers has tripled over 2008. Not only will R-Anell Housing Group have $200,000 loped off its bottom line, but the EEOC will be monitoring compliance for 4 long years; a nightmare for an employer. My recommendation is that you have all your employment practices audited to locate the areas and practices where you are at greatest risk. With a few handbook upgrades, forms and training you can typically avert being the EEOC’s next road kill.

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

Monday, August 10, 2009

ATT Gets Religion after Million Dollar Verdict

ATT Gets Religion after Million Dollar Verdict

Repirint O&A News 08/09/09
The Equal Employment Opportunity Commission (EEOC) recently announced that a Satisfaction of Judgment in the amount of $1,307,597 was entered in U.S. District Court for the Eastern District of Arkansas in a religious discrimination lawsuit brought by the EEOC against AT&T, Inc. on behalf of two male customer service technicians who were suspended and fired for attending a Jehovah’s Witnesses Convention.

In October 2007, a jury awarded the two former employees, Jose Gonzalez and Glenn Owen (brothers-in-law), $296,000 in back pay and $460,000 in compensatory damages under Title VII of the Civil Rights Act. During the four-day trial, the jury heard evidence that both men had submitted written requests to their manager in January 2005 for one day of leave to attend a religious observance that was scheduled for Friday July 15 to Sunday July 17, 2005. Both men testified that they had sincerely held religious beliefs that required them to attend the Jehovah’s Witness convention each year. Both men had attended the convention every year throughout their employment with AT&T. Gonzalez worked at the company for more than eight years and Owen was employed there for nearly six years.

AT&T appealed the jury verdict to the 8th Circuit who sided with the EEOC and upheld the jury verdict. The amount awarded by the jury at trial grew to $1,307,597 with the inclusion of interest and front pay. Additionally, the Judge enter an injunction prohibiting AT&T from engaging in any employment practice which discriminates on the basis of religion.

“These two employees never should have had to choose between their jobs and their sincerely held religious beliefs,” said EEOC Acting Chairman Stuart J. Ishimaru. “With increased religious diversity in the workplace, employers need to be extra vigilant in guarding against discrimination based on religion.”

Religious discrimination charges reported to EEOC offices nationwide have substantially increased to 3,283 in 2008 and in that same year the EEOC recovered $7.5 million in monetary benefits for charging parties and other aggrieved individuals.

Practical Counsel: Under Title VII employers must reasonably accommodate employees' sincerely held religious practices unless doing so would impose an undue hardship on the employer. A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his religion. An employer might accommodate an employee's religious beliefs or practices by allowing: flexible scheduling, voluntary substitutions or swaps, job reassignments and lateral transfers, modification of grooming requirements and other workplace practices, policies and/or procedures. More information at
Religious Discrimination is a hot button issue for the EEOC. My advice is to have your handbook policy and be in an “accommodating” mood when approached by your employee.

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