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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