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Friday, February 25, 2011

5 Steps to Bullet-Proofing your Employee Discharge Decision

Reprint O&A News 2-27-2011
Alabama@ Work
By Tommy Eden, Attorney

The most common question I am asked is “how do I (fairly and respectfully) fire someone without getting sued, or win the case if I do?” A good employer establishes written workplace rules for conduct, safety, appearance, etc. (Employee Handbook is the best place to give notice) and when those established rules are not followed the employer takes action. First, by disciplining the employee in an effort to bring the person back in compliance with the rules or expectations. Second, by terminating a non-performing employee or one who has engaged in workplace misconduct. Harder than it sounds.

The following is a short checklist an employer may consider before terminating an employee so that you can prove "just cause" before any fact-finder; i.e. grievance panel, EEOC, DOL, UC, Court, Jury, Arbitrator, etc. A “just cause” termination is the highest standard of proof that may be required in an employment case. Meet it and you typically will win before any fact finder. Written proof that you followed each one of these steps is a critical component to ultimately prevailing:

1) Can you prove that the employee had fair notice of the rules or standards of conduct or production standards?
• Have the rules been given to the employee, either orally or in writing? (Updated Employee Handbook with signed acknowledgement preferred; training log is even better)
• Are the rules related to the employer’s legitimate interests, e.g., customer loyalty, productivity, safety, security?

2) Did you conduct a fair investigation before a decision was made?
• After learning of the employee’s misconduct, did the employer promptly conduct an investigation? (24-48 hours to get started is best)
• Was the employee notified of the alleged misconduct? In writing?
• Was the employee given a chance to respond to the allegations?
• Did the employer investigate any claims made by the employee?
• Was there substantial evidence, after the investigation, of a rules violation you can identity in the Employee Handbook?
• Did you examine the employee’s personnel file? Including evaluations?

3) Were you consistent in the manner in which discipline was administered?
• Have other employees been disciplined for the same or similar violation?
• If so, have they received the same or similar discipline?
• Level of discipline for classes of offenses clearly set forth in Handbook?

4) Did you first utilize progressive discipline?
• Is the proposed punishment reasonable in light of the violation?
• Will the discipline put the employee back in compliance with the rules (signed discipline receipt by employee is best way to show notice)?
• Will it encourage other employees to follow the rules?
• Should the employee receive a warning and a second chance for a minor violation or is a violation so gross as to require immediate discharge?
• Are there any mitigating circumstances, e.g., good work attendance, seniority, good disciplinary history, remorse by the employee?
• If the rule has not been previously enforced, have your given fair notice that will be in the future, i.e., righting the ship?
• Have you consulted an experienced HR professional or employment attorney before discharging a protected category employee?

5) Have you developed an objective and respectfully worded paper document trail proving you followed each one of the above steps? If so, congratulations you may have conducted a "just cause" termination and can sleep better at night.
Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, PC 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 334-501-1540.

Thursday, February 17, 2011

Department of Labor Announces Intention to Extend Applicability Date of Retirement Plans Fee Disclosure Section 408(b)(2) Regulation

By: Tommy Eden, Attorney

On February 11, 2011, the U.S. Department of Labor's Employee Benefits Security Administration announced that it intends to extend the applicability date for the new disclosure rules under section 408(b)(2) of ERISA Retirement Plans to Start Jan. 1, 2012.

The department published an interim-final regulation on July 16, 2010, requiring certain service providers to employee pension benefit plans to disclose information to assist plan fiduciaries in understanding the reasonableness of the fees being charged for plan services and assess potential conflicts of interest that might affect the quality of those services. The new requirements are scheduled to apply to plan contracts or arrangements for services in existence on or after July 16, 2011.

According to an EBSA fact sheet, the rules will require the disclosure of both direct and indirect compensation received by certain service providers so plan administrators and other fiduciaries can better gauge the reasonableness of service providers' fees and identify potential conflicts of interest that might affect service providers' performance.

"The department intended to have final rules in place sufficiently in advance of the July 16 applicability date to avoid compliance problems for both plans and their service providers," said Phyllis C. Borzi, Assistant Secretary of EBSA. "Given the need to ensure a careful review of all the valuable input we received on the interim final rule, including suggestions for a summary document to further assist plan fiduciaries in their review of furnished information, we now believe plans and plan service providers would benefit from an extension of the rules applicability date. An extension of the applicability date to Jan, 1, 2012 will ensure that we have the time we need to get the final rule right and that plans and their service providers have the time they need to undertake orderly and efficient compliance efforts following publication of the final rule," Ms. Borzi said.

Additional information about the about the final regulation is available on EBSA website at

Common Sense Counsel: if you are an ERISA Plan fiduciary this is critical information you and your Plan Administrator need to review ASAP. There is specific disclosure language, and plan language, which should appear in your ERISA Plan documents, and possibly in your Employee Handbook. Handbooks should be reviewed by your employment law counsel every 2 years, or every 1 year during a Democratic Administration.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, P.C. 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 334-501-1540.


On January 27 in a call to the Paul Finebaum sports talk program Al from Dadeville claimed, "The weekend after the Iron Bowl I went to Auburn, Alabama, because I live 30 miles away, and I poisoned the 2 Toomer's trees," Auburn Police announced this morning that Harvey Almorn Updyke, 62, from Dadeville, has been charged with Criminal Mischief, bond has been set at $50,000. The caller told Finebaum that he placed the same brand of poison on the trees that Auburn officials say they have determined was used for the poisoning. Listen to the call

Friday, February 11, 2011

Social Media Posting Gets Firefighter Fired

Reprint O&A News February 19, 2011
By: Tommy Eden, Attorney

Tiffany Marshall was fired from her position as probationary firefighter trainee in Savannah, Georgia after refusing to take down revealing photos on her “private” MySpace page. Tiffany had re-posted on her MySpace page official photographs from the City’s website in her uniform with members of a local search-and-rescue team. However, Tiffany also posted on her MySpace page revealing modeling photos. Upon being tipped off by an anonymous caller that Tiffany’s MySpace page may have conflicted with the department’s image, Savannah Fire officers were able to view the photos and print out Tiffany’s public MySpace page.

The City’s Fire Chiefs then confronted Tiffany with the photographs and an oral reprimand for violating a new Savannah Fire policy (issued after learning of Marshall’s web page) that prohibited using the department’s identity for personal, recreational or fraternal endorsement without permission. The policy stated that failure to adhere to the policy would subject the employee to disciplinary action. During the meeting with the Chiefs, Tiffany refused to remove the official photos in uniform and erupted in anger, accusing other firefighters of violating the same policy and demanding to know who else had seen her photos. She then refused to reveal the names of other, male firefighters who had posted photos online in violation of the new policy. Three days later Tiffany was fired for insubordination.

The United States Court of Appeals for the Eleventh Circuit decided in its unpublished Marshall v. Mayor & Alderman of the City of Savannah opinion that an employee can be fired for violating an employer’s rules and regulations pertaining to photos and images on a public website. Marshall failed to show that similarly situated employees, whether white or black, male or female, were treated differently to support her claims under Title VII and Section 1983 or that she was fired for any reasons other than insubordination and failure to adhere to policies. The Court did not address the trial court’s decision that Marshall’s MySpace page was not entitled to First Amendment protection.

Common Sense Counsel: an employer’s social media policy should clearly define the limitations upon employees’ work-related use of social media channels requiring: (1) employees to identify their association with the employer whenever an employee is using social media to comment upon the employer’s products or services (see Social Media Postings Risky for Employers article July 16, 2010); (2) unless an employee’s blogging or online postings are officially sanctioned and reviewed by the employer, the employee should be required to use conspicuous disclaimers that his or her views do not represent the views of the employer; (3) cover issues such as the use of photographs and names of co-employees or customers; and (4) employees should be reminded of the employer’s right to lawfully and respectfully monitor their social media postings and other online activities for compliance with the employer’s policies, but be careful in your policy not to restrict employees’ right to engage in “protected concerted activity” under the National Labor Relations Act as did a Connecticut ambulance service who recently entered into a settlement with the NLRB and changed it social media policy.

Tommy Eden is a Lee County native, an attorney with the Opelika office of Capell & Howard, P.C. 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 334-501-1540.

Wednesday, February 9, 2011

Foreign Automotive Manufacturers in UAW Crosshairs

Reprint O&A News January 30, 2011
By: Tommy Eden, Attorney

The top priority for the United Auto Workers in 2011 is to organize one of the foreign, or what it calls "transplant," car makers according to a statement by its new president earlier this month. Since UAW rich labor contracts and stifling work rules helped bring Detroit's Big Three to their knees, new dues-paying members are sorely needed.

New UAW Chief Bob King has set out 11 "principles" that he demands car makers must accept or the UAW will "expose" them as "human rights violators." His bully threat is backed with at least $60 million from the union's $800 million strike fund. With fewer than 400,000 members, down from a high of 1.5 million in 1979, the UAW can afford to raid its strike fund. The UAW has already failed in efforts to organize the 88,000 workers at Nissan, Honda, Toyota and Mercedes-Benz.

King’s principles start by repeating the long-established ban on employer intimidation for union activity, but then he wants car makers to give up their right to discuss unionization on company grounds "unless the UAW is invited to participate." Unions are now free to visit employee homes whenever they wish and make promises that would cause even a politician to blush. He is also demanding that "an impartial, third party" resolve "any disagreements" over the conduct of the organizing campaign. The National Labor Relations Board currently plays this role, but the UAW wants to force companies to agree to a separate judicial body and waive their rights under the law. Next, he demands car makers agree to “card check” by bullying-not legislation. A secret ballot election is the greatest safe guard an employee has under the NLRA to choose fairly. Lastly, the UAW would mandate arbitration on a first labor contract if the two sides can't agree. This was also part of the card check bill that died last year.

The UAW has tried and failed before, most recently in its repeated attempts to organize Nissan's plant in Smyrna, Tennessee and Toyota's in Georgetown, Kentucky. These companies have showed employees that a nonunion job paid on par with UAW wages is better over the long term than a union presence that makes the company uncompetitive and a candidate for bankruptcy.

Common Sense Counsel: Taking the following 7 steps can help your company avoid be an easy target for a slick talking union organizer: 1) let your employees know how you feel about a union in your employee handbook; 2) don't be afraid to send a letter home to employees reiterating your position; 3) check your no solicitation, no distribution policies for legal compliance and property signage; 4) train your supervisor on appropriate and legal union avoidance steps (TIPS) within the law; 5) make sure your managers and supervisors are being good coaches by showing appreciation for the hard work of employees, involving them in decisions and helping to promote their career path; 6) ask your employees what you can do better with regards to safety, working conditions, communication etc – then do it.; and 7) take affirmative steps to reduce the risk of harassment, favoritism, retaliation and anything else that would hinder a respectful working environment.

Tommy Eden is a resident of Auburn, an attorney with the local office of Capell & Howard, P.C. 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 334-501-1540.

한국어 버전

UAW 노조가 외국자동차업체들을 겨냥하고 있다.
Tommy Eden변호사

1월초 신년사에서 전미자동차 노조(UAW) 위원장은 국내에 있는 외국자동차업체들을 노조화하는 것이 2011년 최대 목표라고 발표했었다. UAW는 이미 강력한 노동계약과 목을 조르는 노동규칙을 사용해서 디트로이트 빅3 의 무릎을 꿇게 한 후 이제는 새로운 회비를 낼 조합원들을 강하게 필요로 하고 있다.

새로 취임된 UAW 위원장 밥 킹은 “11가지 규칙”을 만들어 자동차업체들이 반드시 받아들일 것을 요구하였고, 이 요구사항을 지키지 않는 업체들은 “인권 위반업체” 로 선정하겠다고 하였다. 이 요구를 효과적으로 달성하기 위해 UAW의 $8억 파업기금 에서 최소한 $6,000만 불의 지출이 계획 되고있다. 하지만 실정상, UAW 조합원들이 1979년에 150만 명에서 현재 40만 명으로 감소하여 그들의 파업기금을 털어서 사용할 수밖에 없고 신규 자금을 위해 노력한 UAW는 이미 닛산, 혼다, 도요타, 벤츠 의8만8천명의 직원들의 노조가입을 실패하는 쓴맛을 보았다.

킹의 “11 가지 규칙”은 과거부터 존재하던 고용인들의 노조운동 위협금지 법을 기준으로 하고있지만, 사실상 자동차업체들에게는 “UAW가 참여하지 않는 이상” 무노조에 관한 토론 권리를 포기하라고 요구하고있다. 현재 노조는 원할 때 언제든 자유롭게 직원들의 집을 방문하여 정치가들도 부끄러워할 만할 공략들을 하고 있다. 그는 노조 캠페인을 통해 노무문제를 “공정한 삼자” 가 해결해야 한다고 요구하고 있다. 법적으로는 전국노사관계위원회가 제 삼자의 역할을 하고 있지만, UAW는 강제로 업체들이 법적의 권리를 포기하고 다른 사법조직을 통해 합의에 도달하기 바라고 있다. 또한, 그는 자동차업체들에게 “노동가입 서명방법”을 법안 외로 동의하라 위협하고 있다. 전국노사관계위원회가 진행하는 비밀투표 선거는 직원을 위한 공정하고 합법적인 절차이다. 마지막으로, UAW는 의견이 일치하지 않은 경우에는 기존의 노동 계약을 중재하라고 요구하였다. 이 요구사항은 작년 통과되지 못한 “노동가입 서명방법” 법안의 요구사항 중 하나다.

앞에서 말했듯, UAW는 이처럼 외국계 자동차 회사에 최근 세력을 확장하는 일을 과거에 추진해 왔으나 실패하였다. 최근에는, 테네시주 스멀나에 있는 닛산의 공장과 켄터키주 죠지타운에 있는 도요타의 공장을 노조가입을 시도하였지만 실패하였다. 이 업체들은 직원들에게 그들의 무노조 임금이 회사의 경쟁력을 떨어트리고 파산할 가능성을 높이는 UAW를 통해 받는 임금보다 더 우수하다는 현상을 보여주었다.

해결책 : 말 잘하는 노동조합 대표에게 회사가 노조 형성의 타겟이 되지 않기 위해서 다음의 7가지 절차를 따르기 원한다.

1) 회사 지침서에 노조에 관해서 확실하게 통보해 주어라.
2) 직원의 집으로 노조에 관한 정보를 편지로 보내주어라.
3) “출입금지, 배포금지” 정책을 법적으로 준수하는지 확인하고 경고 간판을 준비하라.
4) 관리자들에게 노동조합 방지교육을 마련해 주어라.
5) 관리자와 담당자들에게 종업원들의 노력을 칭찬해주고 승진할 수 있게 도와줘라.
6) 노사관계, 안전, 작업환경 등에 관해서 종업원들에게 의견을 물어보라, 그리고 그들의 제의를 따라주어라.
7) 건전한 작업환경을 위해 성희롱, 편애, 그리고 보복성 조치가 없도록 철저히 관리하여라.

Tommy Eden 은 Auburn 주민으로써Capell & Howard P.C. 에서 변호사로 활동하고 있으며, American Bar Association의 노동과 고용 법 부서의 회원이며, 동부 앨라배마 SHRM(인사전문가 모임) 의 이사회의 회원이다. 그의 연락처는 이메일 그리고 전화번호 334-501-1540이다.

*Thanks to Sung J. Park and Esther Yu of Daeki America for their translation assistance.

Friday, February 4, 2011

Third Party Retaliation Unlawful Says U.S. Supreme Court

By: Tommy Eden, Attorney

On January 24, 2011 the U.S. Supreme Court in Thompson v. North Am. Stainless LP decided that if an employee suffers retaliation because of their close relationship with a person who files a discrimination charge that person has a Title VII retaliation claim. Eric Thompson was fired for virtually no reason 3 weeks after his fiancée Miriam Regalado had filed an EEOC charge alleging sex discrimination against their joint employer North Am. Stainless. (They now have a lovely 2-year-old daughter according the oral argument transcript). Thompson then filed a charge with the EEOC. After conciliation efforts proved unsuccessful, he sued North Am. Stainless in the United States District Court for the Eastern District of Kentucky under Title VII claiming that North Am. Stainless had fired him in order to retaliate against Regalado for filing her charge with the EEOC. North Am. Stainless’ attorney had argued that Title VII's anti-retaliation clause does not permit third party retaliation claims and only applies to individuals who engage in protected activity by either opposing suspected discrimination or participating in an investigation or other charge-related proceedings.In an 8-0 thumping of the employer, the high court held that Title VII grants Thompson a cause of action. “If the facts Thompson alleges are true, his firing by North Am. Stainless constituted unlawful retaliation. Title VII’s anti retaliation provision must be construed to cover a broad range of employer conduct.” The case was sent back to the lower court for trial.

Common Sense Counsel: EEOC Retaliation charges filed in 2010 were at a record high. The broad range of behavior that may be deemed “protected activity” under the anti-retaliation provision of Title VII of the 1964 Civil Rights Act has widened considerably over the past few years. To the degree conduct (even disruptive conduct) could reasonably be perceived as intertwined and interrelated with alleged harassment, an employer should not use that conduct as the basis for an employee discharge.

Every employer in East Alabama's to do list should include: 1) adopting an effective and legally defensible policy against unlawful retaliation; 2) ensuring that your employees have received a copy of the policy and signed an acknowledgment; 3) training supervisors in unlawful retaliation; 4) removing discharge authority from front-line supervisors; 5) conducting a through investigation of the facts and circumstances - including allowing the employee to tell their side of the events - before making the final discharge decision; 6) conducting exit interviews where you specifically question the employee as to whether they have any unresolved claims against the company and having them acknowledge on the exit interview form their answer; and 7) following systematic steps to ensure that each of your discharge decisions are legal and defensible.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, P.C. 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 334-501-1540.