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Tuesday, January 26, 2010

Injury Suffered During Coffee Break Compensable

















Alabama@Work
By: Tommy Eden, Attorney

On January 15, 2010 a New Jersey appellate court held that injuries to a foreman plumber suffered while driving for coffee arose in the course of his employment. The decision by the Superior Court of New Jersey Appellate Division in Jesse J. Cooper Sr. vs. Barnickel Enterprises Inc. upheld a Division of Workers' Compensation finding that Cooper suffered 100% disability as a result of a February 2003 auto accident that caused compound fractures in both legs and his left arm. Barnickel Enterprises appealed claiming that the accident occurred while Cooper was on a personal errand unrelated to his work. However, Jesse Cooper was given authorization to use the company vehicle. Cooper had left a union hall where he had gone to discuss an upcoming company project with a union instructor because the instructor was busy teaching a class.

Cooper, the Appeals court observed, “was an off-site employee, and could not be expected to stay at a workplace for a period of time with nothing to do, particularly when there was no coffee available at the site.” The court went on to state that “accidents occurring during coffee breaks for off-site employees are equivalent to those suffered by on-site workers and are minor deviations from employment which permit recovery of workers' compensation benefits."

Common Sense Counsel: Alabama should be careful when allowing company employees to utilize a company vehicle for what would otherwise be a personal errand. A vehicle use policy in your handbook is a wise idea. The Alabama workers compensation act is liberally construed similar to the above case so be careful out there.


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, January 22, 2010

Executive Order 13496: Notification of Employee Rights Under Federal Labor Laws










Alabama@Work
By: Tommy Eden, Attorney

On August 3, 2009, the Department of Labor published a notice of proposed rulemaking (NPRM) seeking comments on proposed 29 CFR Part 471 which time to submit comments has passed. We expect that the final regulations will issue in the next 30 days. See proposed regulations at: http://edocket.access.gpo.gov/2009/pdf/E9-17577.pdf.

Proposed Part 471 implements Executive Order (E.O.) 13496, signed by President Barack Obama on January 30, 2009 (74 FR 6107, February 4, 2009) as part of his Big Labor payback. See: http://edocket.access.gpo.gov/2009/pdf/E9-2485.pdf.
E.O.13496 requires Federal contractors and subcontractors to post a required notice in their workplaces informing employees of their rights under Federal labor laws, and provides that the requirement to post the employee notice be included in Federal contracts and subcontracts. This is the language in the draft regulations and we do not expect much change:

Appendix A to Subpart A of Part 471— Text of Employee Notice Clause
‘‘1. During the term of this contract, the contractor agrees to post a notice, of such size and in such form, and containing such content as the Secretary of Labor shall prescribe, in conspicuous places in and about its plants and offices where employees covered by the National Labor Relations Act engage in activities relating to the performance of the contract, including all places where notices to employees are customarily posted both physically and electronically. The "Secretary’s Notice" shall include the following information:

NOTICE TO EMPLOYEES RIGHTS OF EMPLOYEES UNDER THE NATIONAL LABOR RELATIONS ACT
‘"It is the policy of the United States to encourage collective bargaining and protect the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid and protection." Under federal law, you have the right to:

Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment. Bargain collectively through a duly selected union for a contract with your employer setting your wages, benefits, hours, and other working conditions. Discuss your terms and conditions of employment with your co-workers or a union; join other workers in raising work related complaints with your employer, government agencies, or members of the public; and seek and receive help from a union subject to certain limitations. Take action with one or more co-workers to improve your working conditions, including attending rallies on non-work time, and leafleting on non-work time in non-work areas. Strike and picket, unless your union has agreed to a no-strike clause and subject to certain other limitations. In some circumstances, your employer may permanently replace strikers. Choose not to do any of these activities, including joining or remaining a member of a union. ‘‘It is illegal for your employer to:

Prohibit you from soliciting for the union during non-work time or distributing union literature during non-work time, in non-work areas. Question you about your union support or activities. Fire, demote, or transfer you, or reduce your hours or change your shift, or otherwise take adverse action against you, or threaten to take any of these actions, because you join or support a union, or because you engage in other activity for mutual aid and protection, or because you choose not to engage in any such activity. Threaten to close your workplace if workers choose a union to represent them. Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support. Prohibit you from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances, for example, as where doing so might interfere with patient care. Spy on or videotape peaceful union activities and gatherings or pretend to do so. It is illegal for a union or for the union that represents you in bargaining with your employer to: discriminate or take other adverse action against you based on whether you have joined or support the union. ‘‘If your rights are violated:

Illegal conduct will not be permitted. The National Labor Relations Board (NLRB), an agency of the United States government, will protect your right to a free choice concerning union representation and collective bargaining and will prosecute violators of the National Labor Relations Act. The NLRB may order an employer to rehire a worker fired in violation of the law and to pay lost wages and benefits and may order an employer or union to cease violating the law. The NLRB can only act, however, if it receives information of unlawful behavior within six months. ‘‘If you believe your rights or the rights of others have been violated, you must contact the NLRB within six months of the unlawful treatment. Employees should seek assistance from the nearest regional NLRB office, which can be found on the Agency’s Web site: http://www.nlrb.gov/.
‘‘Click on the NLRB’s page titled About Us, which contains a link, Locating Our Offices.

You can also contact the NLRB by calling toll-free: 1–866–667–NLRB (6572) or (TTY) 1–866–315–NLRB (1–866–315–6572) for hearing impaired.

‘‘This is an official Government Notice and must not be defaced by anyone. ‘‘2. The contractor will comply with all provisions of the Secretary’s Notice, and related rules, regulations, and orders of the Secretary of Labor. ‘‘3. In the event that the contractor does not comply with any of the requirements set forth in paragraphs (1) or (2) above, this contract may be cancelled, terminated, or suspended in whole or in part, and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in or adopted pursuant to Executive Order 13496 of January 30, 2009. Such other sanctions or remedies may be imposed as are provided in Executive Order 13496 of January 30, 2009, or by rule, regulation, or order of the Secretary of Labor, or as are otherwise provided by law. ‘‘4. The contractor will include the provisions of paragraphs (1) through (4) herein in every subcontract or purchase order entered into in connection with this contract (unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 3 of Executive Order 13496 of January 30, 2009, so that such provisions will be binding upon each subcontractor. The contractor will take such action with respect to any such subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions, including the imposition of sanctions for non-compliance: Provided, however, if the contractor becomes involved in litigation with a subcontractor, or is threatened with such involvement, as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States.’’

Appendix B to Subpart A of Part 471— Electronic Link Language

RIGHTS OF EMPLOYEES UNDER THE NATIONAL LABOR RELATIONS ACT

‘‘It is the policy of the United States to encourage collective bargaining and protect the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid and protection.’’

The proposed regulation implements E.O. 13496 by prescribing the form and content of the notice, which incorporates employee rights under the National Labor Relations Act (NLRA). The proposed regulation also includes enforcement procedures and provisions regarding sanctions, penalties, and remedies that may be imposed for violations. Federal Government contracting departments and agencies are obliged to include the notice requirements in every Government contract, except collective bargaining agreements entered into by a Federal agency, contracts for purchases under the Simplified Acquisition Threshold, and in those cases where the Secretary exempts a contracting department or agency pursuant to the Executive Order. The proposed regulation requires government contractors to include the contract clause in all subcontracts.

The provisions of the proposed contract clause include the text of the required notice, enforcement procedures, and an explanation of the sanctions, penalties, and remedies that may be imposed if the contractor or subcontractor fails to comply with its obligations.

The notice required by E.O. 13496 and the proposed regulation outlines the fundamental rights regarding union activity and collective bargaining that employees have under the NLRA; provides examples of conduct that is illegal under the NLRA; and provides contact information in the event that an employee suspects that the law has been violated.

Enforcement responsibilities for proposed Part 471 are shared by two agencies. The Office of Federal Contract Compliance Programs (OFCCP) is responsible for investigation and conciliation, and that agency will refer violations to the Office of Labor-Management Standards (OLMS) for enforcement. The sanctions, penalties, and remedies under proposed Part 471 include the debarring of Federal contractors and subcontractors from future Federal contracts and subcontracts.

E.O. 13496 also revoked E.O. 13201, which required Federal contractors and subcontractors to post a notice (the “Beck poster”) informing their employees of rights concerning payment of union dues or fees. See E.O. 13496, Section 13. The Department published a final rule on March 30, 2009, rescinding the regulations at 29 CFR Part 470, which had implemented the Beck poster provisions (74 FR 14045). See: http://edocket.access.gpo.gov/2009/pdf/E9-6926.pdf.
OLMS has removed all material from its Web site relating to E.O. 13201.

Taken right off the DOL website: E.O. 13496 advances the Administration's goal of promoting economy and efficiency of Federal government procurement by ensuring that workers employed in the private sector as a result of Federal government contracts are informed of their rights to engage in union activity and collective bargaining. Knowledge of such basic statutory rights promotes stable labor-management relations, thus reducing costs to the Federal government.

Common Sense Counsel: if you are a federal contractor falling under this Obama Administration payback initiative to Big Labor, you are highly encouraged to review the regulations and be prepared to implement them on fairly short notice. Once the final regulations are issued, we will provide you an additional update and recommended guidance.


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

Thursday, January 21, 2010

EEOC Reports Job Bias Charges Approach Record High in 2009












Commission Obtains $376 Million for Victims of Discrimination


Alabama@Work
By Tommy Eden, Attorney

The U.S. Equal Employment Opportunity Commission (EEOC) today announced that 93,277 workplace discrimination charges were filed with the federal agency nationwide during Fiscal Year (FY) 2009, the second highest level ever, and monetary relief obtained for victims totaled over $376 million. The comprehensive enforcement and litigation statistics for FY 2009, which ended Sept. 30, 2009, are posted on the agency’s web site at http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm

“The latest data tell us that, as the first decade of the 21st century comes to a close, the Commission’s work is far from finished,” said EEOC Acting Chairman Stuart J. Ishimaru. “Equal employment opportunity remains elusive for far too many workers and the Commission will continue to fight for their rights. Employers must step up their efforts to foster discrimination-free and inclusive workplaces, or risk enforcement and litigation by the EEOC.”

The FY 2009 data show that private sector job bias charges (which include those filed against state and local governments) alleging discrimination based on disability, religion and/or national origin hit record highs. The number of charges alleging age-based discrimination reached the second-highest level ever. Continuing a decade-long trend, the most frequently filed charges with the EEOC in FY 2009 were charges alleging discrimination based on race (36%), retaliation (36%), and sex-based discrimination (30%). Multiple types of discrimination may be alleged in a single charge filing.

The near-historic level of total discrimination charge filings may be due to multiple factors, including greater accessibility of the EEOC to the public, economic conditions, increased diversity and demographic shifts in the labor force, employees’ greater awareness of their rights under the law, and changes to the agency’s intake practices that cut down on the steps needed for an individual to file a charge.

The FY 2009 data also show that the EEOC resolved 85,980 private sector charges. In FY 2009, the Commission resolved more charges than ever alleging unlawful harassment, as well as allegations under Title VII of the Civil Rights Act. In FY 2009, the EEOC recovered a record high of $294 million through administrative enforcement and mediation. Further, the productivity of EEOC investigators increased in FY 2009. The EEOC resolved the second highest number of charges per available investigator in the past 20 years.

The Commission also filed 281 new “merits” lawsuits and resolved 321 merits lawsuits in FY 2009 (merits suits include direct suits and interventions alleging violations of the substantive provisions of the statutes enforced by the Commission and suits to enforce administrative settlements). Through its combined enforcement, mediation and litigation programs, the EEOC recovered more than $376 million in monetary relief for thousands of discrimination victims, and obtained significant remedial relief benefiting millions of workers across the country (e.g., court decrees or settlements requiring employers to change discriminatory policies or practices).


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

Tuesday, January 19, 2010

Improper Medical Inquiry Arising From Workplace Drug Test Results in ADA Suit










(11th Circuit 1/11/10)

Alabama@Work
By Tommy Eden, Attorney

John Harrison sued Benchmark Electronics Huntsville, Inc. (“BEHI”), alleging that it engaged in an improper medical inquiry, in violation of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12112(d)(2). The Huntsville, Alabama U.S. District Court granted summary judgment in favor of BEHI on all claims and the 11th Circuit reversed holding that a temporary worker at an electronics manufacturing company can sue the employer for asking him prohibited questions about his health following a pre-hire workplace drug test, even if the employee is not considered legally disabled.

Harrison worked as a “debug tech,” and his responsibilities included identifying problems with, repairing, and testing electronic boards. Although he suffers from epilepsy and took barbiturates to control his condition, the Equal Employment Opportunity Commission (“EEOC”) determined that he did not have a disability as defined under the ADA. At the time Harrison commenced his temporary position at BEHI, the company had a practice of screening temporary employees for potential permanent employment. If a supervisor believed that a temporary employee would meet BEHI’s needs, he would invite that employee to submit an application for employment and complete the necessary drug testing and background check.

Harrison claimed that the manner in which BEHI’s handled his workplace drug test results, and application for a full-time position, violated the ADA. He contended BEHI did not hire him for a full-time position - and eventually caused him to be fired from a temp agency (Aerotek) - because of a perceived disability. Harrison had taken barbiturates to control his epilepsy since he was two years old. A pre-hire workplace drug test detected the barbiturates he was taking under a doctor’s prescription. BEHI’s human resources manager was notified that Harrison’s test had come back positive and was awaiting review by the Medical Review Officer (“MRO”) when it was requested that Harrison “be sent her way.” She stated that she did not tell the hiring manager about the positive drug screen because she had a duty to keep such confidential. Upon arriving at HR, Harrison was then questioned about his prescription while the hiring manager was in the room. The HR manager then called the MRO and passed the phone to Harrison, who answered a series of questions about the medication. The MRO asked him how long he had been disabled, what medication he took, and how long he had taken it. He replied that he had epilepsy since he was two years old, he took barbiturates to control it, and he stated the amount of his dosage. While the hiring manager did not ask any questions, he did remain in the room during this colloquy and heard Harrison’s responses to the MRO’s questions.

BEHI’s MRO eventually cleared the drug test results because of the prescription and authority to hire Harrison was given. However, the hiring manager did not extend the full-time job offer to Harrison and, in fact, asked Harrison’s temporary employment agency not to send him back to BEHI. The employment agency eventually fired Harrison. BEHI contended it did not hire Harrison because he had threatened the hiring manager and because of concerns over his performance. According to the hiring manager, he was told that Harrison threatened to “put his foot up [his] rear if he did not ease off of him,” and to sue BEHI if he was not hired. When later questioned about the timing of the alleged threats, it was admitted that they were not made until after the hiring manager had stopped the offer letter.

With this decision the 11th Circuit has decided to join a number of other federal appellate courts around the country (7th, 8th, 9th & 10th) by formally recognizing the right of a person who is not legally disabled to nevertheless pursue an ADA suit under 42 U.S.C. 12112(d)(2) with allegations they did not get hired because of a perceived disability. The ADA section involved in Harrison’s case bars employers from requiring a medical exam or pose questions to an applicant about whether the person is disabled (or the extent of the disability) before extending a job offer. The employer is only permitted to ask whether the applicant can “perform job-related functions.”

Common Sense Counsel: if I ever decide to teach law school, this is the case I want to use to show: 1) how to mishandle workplace drug testing results; 2) inappropriate and premature reporting by the MRO; 3) how to conduct a non-confidential MRO interview; 4) how to create a “perceived disability” case under the ADA for a non-disabled person; and 5) how bad facts can create liberal law in the 11th Circuit. Risk reduction strategy begins with having the right workplace drug testing policy language relative to pre-duty disclosure of prescription medications by employees in safety sensitive positions, having an ADA reasonable accommodation policy in your handbook (that discusses the interactive process), having essential job functions identified in your job descriptions and training your managers on what is, and what is not, appropriate under the ADA. Once the new ADA Amendments proposed regulations become effective I am confident that “perceived as disabled” claims will become more common.


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, January 13, 2010

Compensation Plan Disclaimer Critical






Alabama@Work
By: Tommy Eden, Attorney

In Henry Vega v. T-Mobile USA Inc., the 11th U.S. Circuit Court of Appeals overturned the District Court’s certification of a class action by an employee who claimed that his T-Mobile failed to pay commissions owed and gained unjust profits as a result. Henry Vega was a Miami retail sales representative for T-Mobile USA Inc. and his compensation was subject to guidelines described in T-Mobile’s 2004 Sales Incentive Compensation Program. When he received a copy of the plan he signed an acknowledgment indicating that he had read and understood it. The Plan stated that Commissions were paid in advance against anticipated earnings in the future, and that they were not actually earned until the expiration of a 180-day charge back window. If a customer deactivated his account within the 180-day window, the commission for that account would not be earned by the sales representative and would be revoked by the company. The front cover of the written compensation plan stated in prominent language that the document “could not be read to create any express or implied contract or promise.”

In January 2004, T-Mobile instituted a new “business rule” which had the effect of negating commissions for a number of sales by Vega and other representatives. Vega filed suit alleging failure to pay wages and unjust enrichment. After discovery, the District Court granted Vega’s motion for class certification and certified the case for trial as a class action. T-Mobile appealed the class certification decision to the 11th Circuit.

The 11th Circuit vacated the order holding that that in light of the express disclaimer the 2004 compensation plan could not constitute a contract in the first place acknowledged in writing by Vega, stating that nothing in the document could be read to create an express or implied contract or promise. The case was remanded to the district court to proceed to trial on Vega’s individual claims.

Common Sense Counsel: In Alabama compensation plans and policies can be interpreted to form contractual obligations. By including a disclaimer expressly stating that the plan or policy or handbook is merely a guideline that can be changed at any time at the company’s exclusive discretion, and that no contract is intended or created, the court will find that no contract is created. A written acknowledgment of the disclaimer can make it even easier to dispose of a breach of contract claim.


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

Tuesday, January 12, 2010

Executive Claim Fails Because of Forum Selection










Alabama@Work
By: Tommy Eden, Attorney

In Barabe v. Apax Partners Europe Managers Ltd. (Oct. 26, 2009) the 11th Circuit Court of Appeals held that a Georgia executive’s employment claim was brought in the wrong court; really the wrong country. He was terminated after his employer was acquired by an English corporation and the new employer found his position redundant.

Regent Medical Americas LLC was acquired by Mölnlycke Healthcare US LLC—a subsidiary whose parent company was London based Apax Partners Europe Managers Ltd. Shortly before the merger, Timothy Barabe was required to sign a subscription agreement setting forth terms under which he could purchase stock and how, and at what price, he would be paid for those shares if he left the company. In the documents the parties mutually agreed to submit to the jurisdiction of the English courts which replaced Barabe’s former service agreement, which specified the jurisdiction and laws of Georgia.

Barabe was terminated and forced under the Agreement to sell his shares back to the company at a price below market value. He then brought suit alleging eight various causes of action. The 11th Circuit affirmed the dismissal of all counts holding that any counts relating to the subscription agreement were due to be dismissed for improper venue because they were not brought in England as required by the signed subscription agreement.

Common Sense Counsel: This case demonstrates how global mergers and acquisitions can work to the advantage of the party who makes the rules. The best way to win a legal fight is to make sure it is held in your living room, which in the case just happed to be 6000 miles away. American courts will generally enforce forum selection clauses even when they require a U.S. citizen to bring suit in a foreign country. Signing, or creating, a legal document without consulting a lawyer is risky.


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, January 11, 2010

Ledbetter Act Does Not Invalidate Validly Executed Waivers









Alabama@Work
By: Tommy Eden, Attorney

Recently, in Lerman v. City of Fort Lauderdale Fla., the 11th U.S. Circuit Court of Appeals answered the question of whether passage of the Ledbetter Act precludes employers from enforcing signed waivers of any ADEA claims. The 11th Circuit held that waivers are permissible and enforceable as long as the release contains the necessary language and otherwise meets the requirements for waiving age claims.

The City of Fort Lauderdale, Fla. Deferred Retirement Option Program (DROP) allowed participating firefighters and police officers to earn early retirement benefits even though they continued to work and draw a regular salary for a specified period of time. To participate officers were first required to execute an “Acknowledgment, Waiver and Release Agreement” releasing all claims of age discrimination against the City, and to submit an irrevocable letter of resignation that would become effective at the end of that employee’s DROP period. After executing the Release and later passage of the Ledbetter Act, 13 police officers sued the City, claiming that the DROP program discriminated based on age because younger officers had an opportunity to earn higher pension accruals before reaching the age for DROP eligibility.

The United States District Court and 11th Circuit upheld the City’s position that the waivers barred the employees’ claims. Both courts looked closely at the release language to make sure it complied with the requirements of the Older Workers Benefit Protection Act (OWBPA), which must be met whenever an employee releases a claim under the ADEA. The waivers contained the required language and 7 revocation period, were written in “plain English” that could be understood by the officers, and the waivers were knowing and voluntary. An additional argument by the officers was that the passage of the Ledbetter Act precluded employers from requiring officers to waive their ADEA rights in order to participate in the DROP. The 11th Circuit rejected this argument and reiterated the fact that employees may waive their rights under the ADEA if the waiver is knowing and voluntary and in compliance with the OWBPA.

Common Sense Counsel: A key element in the Ledbetter Act states that “a discriminatory compensation decision or other practice that is unlawful under such acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, and for other purposes.” What this means for employers is that an employee may bring a lawsuit over an allegedly discriminatory compensation decision that was made years ago, as long as the employee continues to receive paychecks that are the result of the past compensation decision. However, the Ledbetter Act does not prohibit employers from obtaining valid waivers of discrimination claims. Although the requirements of the OWBPA may seem formalistic and unnecessary, failure to satisfy the OWBPA can expose the employer to liability for age discrimination, even when both the employer and the employee intended to release such claims. A well drafted release by an experienced Employment Counsel is highly advised. Legal Zoom is not your best course of action.


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, January 4, 2010

Top 10 Best HR Practices for 2010



















Alabama@Work
By: Tommy Eden, Attorney

1. Upgrade your Harassment Prevention, Training and Investigative Program. After making sure you have the basic policy and forms in place, be mindful that recent EEOC decisions indicate that failure to conduct a prompt and proper investigation, or retaliation, may be may be fatal to your bottom line.

2. Draft or Update ADA-compliant Job Descriptions. These documents should serve as the foundation for all effective and defensible decisions involving hiring, performance evaluation, discipline, wage and hour status, promotions, return to duty, FMLA, reasonable accommodations and discharge.

3. Implement an Effective and Defensible Interviewing and Hiring Process. Dealing with the “bad hire” can be an expensive nightmare, but turnover is an expense you can control. Remember that past behavior is the best indication of future performance. A “gut feeling” is rarely defensible.

4. Employee Handbooks and Forms should be submitted for a compliance review every two years. Having the right policies and forms (application to separation, drug testing, FMLA, texting, reduction in staff, etc) to deal with employee misconduct, and provide government-mandated notices, are critical to your overall risk reduction program. PDF technology has made it more cost effective to electronically update and distribute your handbook and forms.

5. Implement an Effective and Defensible Discipline and Termination Process. Supervisory coaching on handling difficult employees has proven to be a good risk reduction investment. Not using an Alabama termination process checklist is playing Russian roulette where a jury keeps the score. Also, recognize how and when to use staged payment severance agreements to cut off your liability when you smell trouble.

6. Audit Wage and Hour Classifications for Legal Compliance. With the new FLSA enforcement initiatives, and the multitude of misclassification lawsuits around the country, this is a wise risk reduction strategy.

7. Conduct Performance Evaluation Supervisory Training. Grade inflation is a real risk that can come back to haunt you when an employee is terminated and the EEOC, or a jury questions, the decision in light of a 5 star evaluation. Train your supervisors how to effectively conduct these evaluations with a human touch.

8. Training, Training, and More Training. Effective supervisory training on hiring, discipline, harassment prevention, coaching employees, FMLA, litigation prevention, etc., is a must. Jury surveys continue to find that a company that fails to train is negligent.

9. COBRA Stimulus Extension Election Notice regulations require extensive revision of all your notice and election forms.

10. Diversity Training is not only helpful in creating a team-oriented environment; it is a good risk reduction strategy. Using training that can be replicated in the courtroom is sometimes the best way to display your good faith efforts to prevent discrimination in the workplace.


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