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Thursday, October 29, 2009

FMLA Military Leave Law Expanded in Defense Bill

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:

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 or 334-246-2901. Blog at 

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 or 334-246-2901. Blog at

New EEOC Poster Up By November 21

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

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, October 16, 2009

Employee Genetic Information Now Protected

Employee Genetic Information Now Protected
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:

The HHS OCR HIPAA notice of proposed rulemaking is at:

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 or 334-246-2901. Blog at

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

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
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 or 334-246-2901. Blog at 

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 or 334-246-2901. Blog at