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Thursday, August 26, 2010

Commercial Drivers Caught in DOT Drug Testing Sweep














Alabama@Work
By: Tommy Eden, Attorney

On August 18, 2010 U.S. Transportation Secretary Ray LaHood announced that 109 commercial bus and truck drivers were removed from the roads and more than 175 carriers face enforcement actions as a result of the Federal Motor Carrier Safety Administration’s annual drug and alcohol strike force sweep that occurred from June 21 through July 2. The 109 commercial drivers now face the prospect of a monetary fine and being barred from operating a commercial motor vehicle for failing to adhere to federal drug and alcohol regulations. As reported in a DOT Press Release, LaHood stated: “If you are a commercial driver or carrier operating in violation of federal drug and alcohol laws, we will remove you from our roadways,” said LaHood. “Parents deserve to know their children are being driven by bus drivers who are drug and alcohol free, and every motorist deserves to feel confident that the drivers of large trucks and buses are safe and sober.”

During the two week sweep, FMCSA strike force investigators examined the drug and alcohol safety records of commercial drivers employed by bus and truck companies, including school bus drivers, interstate passenger carriers, hazardous material transporters and general freight long-haul trucking companies. Their goals were to identify motor carriers in violation of federal drug and alcohol testing requirements and to remove from the road commercial truck and bus drivers who jump from carrier to carrier to evade federal drug and alcohol testing and reporting requirements. “FMCSA is committed to ensuring that only safe commercial drivers and carriers are allowed to operate,” said FMCSA Administrator Anne Ferro. “Our annual drug and alcohol strike force is just one of the ways we weed out those ‘bad actors’ and make our roads safer for everyone.”

Additionally, 175 commercial carriers face pending enforcement actions for violations, such as using a driver who has tested positive for illegal drugs and for not instituting a drug and alcohol testing program. Both drivers and carriers will have an opportunity to contest the alleged violations and the amount of the civil penalties.

Common Sense Counsel: There have been many changes in the DOT regulations over the past 2 years and more to come by October 1, 2010 with a change in cutoff level and the addition of ecstasy to the testing panel. Now is a good time to audit you entire DOT training and compliance program so you will not be the next 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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Monday, August 16, 2010

New DOT Workplace Drug and Alcohol Testing Procedures
















Alabama@Work
By: Tommy Eden, Attorney

Published in today’s Federal Register is a new Final Rule. Summary:
1) The Department is required by the Omnibus Transportation Employees Testing Act (Omnibus Act) to follow the HHS requirements for the testing procedures/protocols and drugs for which we test.

2) Primary laboratory requirements in this final rule include:

- Testing for MDMA (aka Ecstasy);
- Lowering cutoff levels for cocaine and amphetamines;
- Conducting mandatory initial testing for heroin;

3) The Department brought several testing definitions in-line with those of HHS.

4) Each Medical Review Officer (MRO) will need to be re-qualified – including passing an examination given by an MRO training organization - every five years. The Final Rule eliminated the requirement for each MRO to take 12 hours of continuing education every three years.

5) An MRO will not need to be trained by an HHS-approved MRO training organization as long as the MRO meets DOT’s qualification and requalification training requirements.

6) MRO recordkeeping requirements did not change from the five years for non-negatives and one year for negatives.

7) The Final Rule does not allow the use of HHS-Certified Instrumented Initial Testing Facilities (IITFs) to conduct initial drug testing because the Omnibus Act requires laboratories to be able to perform both initial and confirmation testing but IITFs cannot conduct confirmation testing.

8) The Final Rule is effective October 1, 2010.

You can view the Final Rule at the Federal Register’s website: http://edocket.access.gpo.gov/2010/pdf/2010-20095.pdf .


The document is also be available on the ODAPC website at http://www.dot.gov/ost/dapc.


Common Sense Counsel: There have been many changes in the DOT regulations over the past 2 years and more to come by October 1, 2010 with a change in cutoff level and the addition of ecstasy to the testing panel. Now is a good time to audit you entire DOT training and compliance program.

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


Understanding the New DOL Break Time for Nursing Mothers Guidelines















Alabama@Work
By: Tommy Eden, Attorney

On July 28 the U.S. Department of Labor (DOL) released a Fact Sheet explaining the March, 2010 amendment to the Fair Labor Standards Act that requires employers to provide breaks for nursing mothers. Got to www.dol.gov and type in Fact Sheet #73: Break Time for Nursing Mothers under the FLSA and you will find a copy. The law requires employers to provide "reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk." Employers must provide the breaks "as frequently as needed", and must give the employee a private place, other than a bathroom, to take the breaks. The breaks need to be of "reasonable" length. The employer does not have to pay the employee for the break time, unless the employer already provides compensated breaks, and the employee uses one of those breaks to express breast milk.

A couple of interesting points: (1) the law applies only to non-exempt employees, and not to exempt employees; and, (2) employers with under 50 employees are not subject to the law "if compliance with the provision would impose an undue hardship."

Common Sense Counsel: This amendment will probably not lead to much litigation, but employers need to update their employee handbooks. Below is a sample policy:

Break Time for Nursing Mothers
Employer complies with all federal and state laws and regulations concerning breast- feeding and nursing mothers and provides assistance for nursing mothers who want to express and store breast milk at workplaces during business hours.

Break Time for Lactation Purposes: Employees who are nursing mothers can take reasonable break periods during the workday to express breast milk for their children. Such nursing mothers can take breaks each time they need to express milk beginning from the date of the nursing child's birth and for up to one year. Employees who are nursing mothers can use their meal and paid break times for lactation purposes. Break times that are used for lactation purposes beyond employer provided break times are unpaid. Employees who are nursing mothers should discuss their need for extra break periods to express breast milk with Human Resources.

Employer’s Lactation Room: For the convenience and privacy of nursing mothers, employer provides a lactation room that is located at [building/floor location]. This room includes two electrical outlets, a sink, a comfortable chair and foot stool, a small refrigerator to store breast milk during work hours, markers to label bottles of expressed milk, paper towels, dish soap, hand soap, a waste basket, a dish drying rack, a clock, a storage cabinet, and a place to display and store reading materials of interest to nursing mothers.

Questions:
Please contact Human Resources.

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

New Alabama Laws Remove Criminals from Classrooms















Alabama @Work
By: Tommy Eden, Attorney

To protect Alabama children and stop payment to teachers convicted of Felonies and sexual offences with children, Act No. 2010-264 (Fincher Act) passed in the 2010 legislative session mandating the immediate revocation of the teaching certificate and the immediate cancellation of the employment contract of any person convicted of a crime enumerated in the Fincher Act. The bill was inspired by the case of Charlene Schmitz, a Washington County teacher who continued to draw more than $140,000 in pay after she was convicted of luring a student for sex and was sentenced to ten (10) years in prison. While incarcerated in a Florida penitentiary the Alabama State Department of Education conducted its revocation hearing via video teleconference in order to provide her with due process rights.

When the Fincher Act went into effect on March 31, 2010, the teaching certificate of Bryan C. Pettibone, a 36-year-old science teacher and boys' basketball coach from Central Baldwin Middle School (Baldwin County), was revoked, his employment terminated, and all payment to him have stopped. Pettibone was arrested in February of 2009 (prior to the adoption of the Fincher Act) and charged with four counts of enticing a child for immoral purposes, one count of attempted sexual abuse, three counts of sexual abuse, and four counts of harassment. His victims ranged from 13 to 14 years of age. Pettibone was subsequently convicted of these charges on May 11, 2010. Previously, Pettibone was protected by the Teacher Tenure Act, which prohibited his immediate termination and he was on paid leave and received more than $65,000 in salary since his arrest in 2009.

The other highly significant Alabama laws that became effective July 1, 2010 relate to sexual relationships between students and school employees, both public and private schools. In accordance with § 13A-6-81, a school employee engaging in a sex act with a student under the age of 19 years is guilty of a Class B felony. Consent is not a defense. The law has a good bit of more explicit language not appropriate for this article. A school employee includes a teacher, school administrator, student teacher, safety or resource officer, coach, and other school employee. Additionally, § 13A-6-82. School employee having sexual contact with a student under the age of 19 years is considered a Class A misdemeanor. Sexual contact means any touching of the sexual or other intimate parts of a student, done for the purpose of gratifying the sexual desire of either party. The term includes soliciting or harassing a student to perform a sex act.

5 Common Sense Suggestions for Schools to Reduce the Risk of Sexual Misconduct. With these new Alabama laws in place, and the enormous attention being paid to inappropriate boundary invasions by educators communicating with students through texting, Facebook, and other forms of social media, which can lead to sexual grooming and various crimes involving minors, it is important that schools of all descriptions consider the following:

1) Adopt a strictly enforced written Sexual Misconduct Prevention Policy;

2) Appropriately screen all Employees and Volunteers working with students;

3) Follow a written Protection Policy to protect students and the good name and reputation of teachers and volunteers from false allegations;

4) Have an established written Reporting and Response policy to allegations of Sexual Misconduct; and

5) Decide in a written school policy what may be types of inappropriate contacts between teachers and students, holding your peers accountable, and train teachers and parents on what to look for in the way of inappropriate boundary invasions.


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, August 2, 2010

I-9 Electronic Signature Clarified














Alabama@Work
By: Tommy Eden, Attorney

The U.S. Department of Homeland Security (DHS) on July 22, 2010 (effective Aug. 23, 2010), published a final rule in the Federal Register on the electronic signature and storage of the Form I-9. It also recently released new field guidance on worksite enforcement, strengthening its efforts to target employers who knowingly violate the law; increases the use of administrative tools such as Form 1-9 audits, criminal prosecutions, seizure of assets, civil fines, and debarment. For more information see http://www.dhs.gov/

The final rule permits employers to complete, sign, scan and store the Form I-9 electronically as long as certain performance standards set forth in the final rule for the electronic filing system are met and makes minor modifications to the interim final rule to clarify that employers:

• Must complete a Form I-9 within three business—not calendar—days.

• May use paper, electronic systems or a combination of paper and electronic systems.

• May change electronic storage systems as long as the systems meet the performance requirements of the regulations.

• Need not retain audit trails for each time a Form I-9 is viewed electronically, but only when the Form I-9 is created, completed, updated, modified, altered or corrected.

• May provide or transmit a confirmation of a Form I-9 transaction but are not required to do so unless the employee requests a copy.

• DHS clarified that employers may, but are not required to, copy or make an electronic image of a document used to comply. It cautioned, though, that employers should apply consistent policies and procedures for all employees to avoid discrimination.

• Only the pages of the Form I-9 containing employer- and employee-entered data need be retained. Other pages of the current form are instructions for completing the Form I-9 and need not be retained.

• DHS cautioned that providing the option of electronic preparation and storage does not alter the requirement that the employer physically examine any documentation provided by the employee in the presence of the employee prior to completing the Form I-9.

Common Sense Counsel: I-9 Best Employment Practices

1. Use the DHS employment eligibility verification program E-Verify to verify the employment eligibility of all new hires (E-Verify is used by more than 126,000 employers nationwide, with 1,000 new businesses joining each week);

2. Establish an internal training program on the hiring process, with annual updates (i.e., on how to manage completion of Form I-9 [Employment Eligibility Verification Form]), and on how to detect the fraudulent use of documents in the I-9 process;

3. Permit the I-9 and E-Verify process to be conducted only by individuals who have received this training, and include a secondary review as part of each employee’s verification, to minimize the potential for a single individual to subvert the process;

4. Arrange for annual I-9 audits by an external auditing firm or a trained employee not otherwise involved in the I-9 process;

5. Ensure and document the definitive resolution of no-match letters received from the Social Security Administration (SSA), per SSA and Department of Homeland Security guidance;

6. Establish a tip line mechanism (inbox, e-mail, etc.) for employees to report activity relating to the employment of unauthorized aliens, and a protocol for responding to employee tips;

7. Establish and maintain appropriate policies, practices and safeguards against use of the verification process for unlawful discrimination, and to ensure that U.S. citizens and authorized workers do not face discrimination with respect to hiring, firing or recruitment or referral for a fee because of citizenship status or national origin.


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