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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 

Monday, September 7, 2009

Taco Bell Settles: Sexual Offender Manager Assaulted Teen Employees


Alabama@Work

Tommy Eden, Attorney


Reprint O&A News 9-06-09
Taco Bell Corporation agreed last week to pay $350,000 to two teenage female employees to resolve a sexual harassment lawsuit. The lawsuit brought by the EEOC alleged that a former manager at a Taco Bell Memphis store, sexually assaulted a 16-year-old female employee on her first day of work. The Complaint stated that he sexually assaulted the young woman on the work premises and then tried to follow her as she fled home. An Amended Complaint alleged that the same manager had forcibly raped another 16-year-old female employee just five months earlier. This type of workplace misconduct violates Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination, including sexual assaults as the most egregious forms of sexual harassment.
In a separate 2009 criminal proceeding, the manager pled guilty to raping both women and is currently serving two concurrent eight-year prison terms. Upon his release, he will be required to register permanently as a sex offender under the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act. In addition, as a convicted rapist, he will never again be permitted to work in any job employing minors under the age of 18.
The United States District Court in Memphis also entered a consent decree effecting eight Taco Bell stores in the Memphis metropolitan area requiring Taco Bell to do the following:
· Pay a total of $350,000 under the terms of the two-year consent decree to resolve the claims of the two harassment victims;
· Maintain a written policy against sexual harassment;
· Widely distribute the policy to all employees in Memphis stores within 30 days of the entry of the decree;
· Conduct anti-discrimination training; and
· Post anti-discrimination notices.
Common Sense Counsel: These are particularly egregious allegations both because of the nature of the conduct and the age of the female victims. It is tragic when young employees, especially in their first jobs, are subjected to this level of sexual abuse by a manager. Sexual harassment is always unacceptable, but this situation was especially so, given the extreme nature of the assaults and the youth and vulnerability of the victims. For Alabama employers there is no substitute for a well drafted written policy against harassment, distribution of the policy with a signed employee acknowledgment, awareness training on the policy and a procedure to investigate and resolve complaints. The next issue of grave concern is the hiring any employee, and particularly a manager, that may have a criminal background when you have teenage employees or care for children. All such management employees should be run through a criminal background and sexual offender check, with a checking of prior references. A well drafted release to obtain background information is your key to success to keep your Company out of the headlines and protecting your employees from sexual predators.

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