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Saturday, March 26, 2011

EEOC Announces Final Regulations for the ADA Amendments Act

Regulations Implement Congressional Intent to Simplify and Expand Definition of Disability

The U.S. Equal Employment Opportunity Commission’s (EEOC) final regulations to implement the ADA Amendments Act (ADAAA) are now available on the Federal Register website. Like the law they implement, the regulations are designed to simplify the determination of who has a “disability” and make it easier for people to establish that they are protected by the Americans with Disabilities Act (ADA). Effective Date: These final regulations will become effective on May 24, 2011

“The ADAAA is a very important civil rights law,” said EEOC Chair Jacqueline A. Berrien. “The regulations developed by the Commission to implement the ADAAA clarify the requirements of the law for all stakeholders, which is one of the Commission’s most important responsibilities.”

“Based on the hard work we did at the Commission over the past months, I am confident that these regulations will work well for both people with disabilities and employers,” said Commissioner Chai Feldblum, who joined the EEOC in April, 2010. “It was our job as an agency to carry out the intent of this landmark law and I believe we have done so successfully.” Feldblum was one of the lead negotiators on the original ADA as well as on the Amendments Act.

“Just as the ADAAA was the result of a considerable bipartisan effort by Congress, the final rule represents a concerted effort of EEOC Commissioners representing both parties to arrive at regulations that hold true to that bipartisan Congressional intent,” said Commissioner Constance S. Barker. “I was pleased to have been able to vote in favor of the final rule.” Commission Barker is my former law partner.

The ADAAA went into effect on Jan. 1, 2009. In the ADAAA, Congress directed the EEOC to revise its regulations to conform to changes made by the Act, and expressly authorized the EEOC to do so. The EEOC issued a Notice of Proposed Rulemaking seeking comment on proposed implementing regulations on September 23, 2009, and received well over 600 public comments in response. The final regulations reflect the feedback the EEOC received from a broad spectrum of stakeholders.

The ADAAA overturned several Supreme Court decisions that Congress believed had interpreted the definition of “disability” too narrowly, resulting in a denial of protection for many individuals with impairments such as cancer, diabetes or epilepsy. The ADAAA states that the definition of disability should be interpreted in favor of broad coverage of individuals. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.

The ADAAA and the final regulations keep the ADA’s definition of the term “disability” as a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability. But the law made significant changes in how those terms are interpreted, and the regulations implement those changes.

Based on the statutory requirements, the regulations set forth a list of principles to guide the determination of whether a person has a disability. For example, the principles provide that an impairment need not prevent or severely or significantly restrict performance of a major life activity to be considered a disability. Additionally, whether an impairment is a disability should be construed broadly, to the maximum extent allowable under the law. The principles also provide that, with one exception (ordinary eyeglasses or contact lenses), “mitigating measures,” such as medication and assistive devices like hearing aids, must not be considered when determining whether someone has a disability. Furthermore, impairments that are episodic (such as epilepsy) or in remission (such as cancer) are disabilities if they would be substantially limiting when active.

The regulations clarify that the term “major life activities” includes “major bodily functions,” such as functions of the immune system, normal cell growth, and brain, neurological, and endocrine functions. The regulations also make clear that, as under the old ADA, not every impairment will constitute a disability. The regulations include examples of impairments that should easily be concluded to be disabilities, such as HIV infection, diabetes, epilepsy, and bipolar disorder.

Following the dictates of the ADAAA, the regulations also make it easier for individuals to establish coverage under the “regarded as” part of the definition of “disability.” Establishing such coverage used to pose significant hurdles, but under the new law, the focus is on how the person was treated rather than on what an employer believes about the nature of the person’s impairment.

The Commission has released two Question-and-Answer documents about the regulations to aid the public and employers – including small business – in understanding the law and new regulations. The ADAAA regulations, accompanying Question and Answer documents and a fact sheet are available on the EEOC website at

Friday, March 25, 2011

Time-Clock Complaint Protected Conduct


By Tommy Eden, Attorney

Kevin Kasten was fired from his job after voicing complaints to his employer about the location of time-clocks. The employer, Saint-Gobain Performance Plastics Corp., is a Paris based multinational corporation and claims to be the world’s leading producer of engineered, high performance polymer products. It located its timeclocks between the area where Kasten and other workers put on and take off (also called “donning and doffing”) their work related protective gear and the area where they carry out their assigned tasks. That location prevented workers from clocking in for the time they spent putting on and taking off their work clothes. Employers are required to compensate “donning and doffing” which can be a violation of the Fair Standards Labor Act (FLSA).

Kasten claims that he was discharged because he orally complained to company officials about the location of the timeclocks. In particular, Kasten says he repeatedly called the unlawful time-clock location to his supervisor’s attention, in accordance with the employer’s internal grievance resolution procedure. Kasten also “raised a concern” with his shift supervisor that “it was illegal for the timeclocks to be where they were.” Further, he claims that he told a number of employees in supervisory positions, including human resources, that if the employer got challenged on the location in court, “they would lose.” Kasten also made it known to his supervisor that he was thinking about suing the employer over the placement of the timeclocks.

Kasten was disciplined and eventually dismissed; but the company denies that Kasten made any significant complaint about the time-clock location. It claimed to have dismissed Kasten simply because he, after being warned numerous times, failed to record his comings and goings on the time-clock. After the company fired Kasten it moved the time-clocks.

The lower courts held that the FLSA anti-retaliation provision did not cover oral complaints. On March 22, 2011, the United States Supreme Court in Kasten v. Saint-Gobain Performance Plastics Corp. disagreed, holding that the FLSA protects oral complaints. Justice Stephen Breyer, writing for the high court majority, explained that the FLSA forbid employers “to discharge … any employee because such employee has filed any complaint” alleging violation of the Act. The term “filed any complaint” includes oral, as well as written, complaints.

Common Sense Counsel: This case means that it is time for a Wage and Hour Compliance Audit. With the DOL’s new resources, employers can expect to face additional pressure from the government and individual lawsuits. Wage and hour compliance is one of the most difficult problems for employers. Alabama employers should considering taking the following steps before a government compliance officer, or plaintiff attorney, arrives at the door:

  • Check that your employee handbook has the most updated FLSA “safe harbor” language with an anti-retaliation provision included;
  • Review FLSA classifications and job descriptions of exempt, nonexempt, and independent contract workers;
  • Check the FLSA legal compliance of your commissions, bonuses, incentive payments, and other compensation programs;
  • Insure that overtime pay calculations are being properly documented; and
  • Check that you are following FLSA recordkeeping requirements.

Tommy Eden is a native 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.

Thursday, March 17, 2011

Former Addict Employment Discrimination Claim Rejected


By Tommy Eden, Attorney

Plaintiff Santiago Lopez applied for a longshoreman position in 1997 with the Pacific Maritime Association. It is an employer association that represents the shipping lines, stevedore companies, and terminal operators that run the ports along the west coast of the United States. Lopez tested positive for marijuana at the standard pre-employment drug and alcohol screening process and was denied employment. In 2004, after undergoing treatment for drug addiction, he reapplied for a longshoreman position. His application was rejected under the one-strike rule. As the collective bargaining agent and payroll administrator for its member employers, Pacific enforces a “one-strike” rule for all applicants seeking positions as longshore workers. The rule “eliminates from consideration any applicant who tests positive for drug or alcohol use during the pre-employment screening process.” Applicants receive at least seven days’ advance notice of the tests. Applicants who fail the screening are disqualified, automatically and permanently, from consideration for future employment with the association’s employers.

Lopez filed suit against Pacific, alleging discrimination based on his protected status as a “rehabilitated drug addict” under the ADA and California’s Fair Employment and Housing Act (FEHA). Both Acts protect individuals who are recovering or who have recovered from a drug addiction. They do not protect individuals who are using currently illegal drugs when they apply for a job. The United States District Court granted summary judgment in favor of Pacific and Lopez appealed to the 9th Circuit which has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

In Lopez v. Pacific Maritime Assoc., (9th Cir. Mar. 2, 2011) the Court held that a plaintiff must demonstrate some statistically significant evidence in support of their disparate impact claim under the Americans with Disabilities Act and the California FEHA, even though such evidence may be very difficult to obtain. The 9th Circuit held that such statistically significant evidence was critical in order to establish that Lopez’s employer’s “one-strike” rule discriminates against recovering addicts who seek employment with the employer after previously failing its pre-employment drug test.

Common Sense Counsel: while this is a drug testing case, it is also a “perceived as” discrimination case under the ADAA and thus very risky for employers. The yet to be released EEOC ADAA regulations will most likely address this very issue and determine that such a “one-strike” rule relating only to a passed failed drug test is a “perceived as” ADAA claim. Employer Action Steps: 1) updated job descriptions with essential functions; 2) ADAA handbook policy language is strongly advised; 3) supervisor training on ADAA responsibilities is critical; and 4) understanding the interactive ADA dance is just good risk reduction.

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.

Friday, March 11, 2011

Immigration Violations Costly

By: Tommy Eden, Attorney

Sometimes a bad hire decision can result in poor morale, an EEOC charge, a workplace injury, or in the case of former Howard Industries, Inc. HR Manager Jose Humberto Gonzalez a 2.5 million dollar fine. On December 9, 2009 Gonzalez pleaded guilty to one count of conspiracy to hire illegal immigrants in the United States Federal Courthouse in Hattiesburg, Miss. He was initially indicted on 24 counts of conspiracy and employee verification fraud in April 2009 following the August 25, 2008 U.S. Immigration and Customs Enforcement (ICE) raid at the Laurel, Miss. plant and Ellisville headquarters of Howard Industries, Inc. ICE reported it was the largest workplace raid of illegal immigrants in U.S. history with 595 arrested, nine were charged criminally with aggravated identity theft and pled guilty and many of the others left the United States.

The Federal Court indictment charged Gonzalez with: 1) encouraging illegal aliens to reside in the United States; 2) attempting to conceal and harbor illegal aliens; 3) falsely attesting to the validity of employment-related documents; 4) routinely hiring illegal aliens and in the process of hiring such would accept false identity documents, including alien registration receipt cards and Social Security Cards; 5) after being notified by the Social Security Administration that the Social Security numbers of certain applicants were not found to be valid, Gonzalez would nonetheless hire and continue to employ such persons; 6) would instruct employees to obtain alternative identity documents which he knew falsely represented their true identities; 7) would assure Spanish-speaking foreign nationals working at the Laurel plant that they would be warned if immigration authorities were coming to the plant and 17 other immigration law violations. On March 4, 2011, he was sentenced to 6 months house arrest, five years probation and fined $4,000.

It only gets worse, on February 25, 2011, Howard Industries, Inc., pled guilty in federal court in Laurel, Miss to conspiracy to violate immigration laws and agreed to pay a $2.5 million fine Howard Industries waived indictment and acknowledged that the fine was in excess of the fine amount ordinarily provided by statute for the single count of conviction.

Common Sense Counsel: The steps Alabama HR Managers should take to avoid their own Bad Hire Decision, and a hefty fine, is best expressed in a statement by the President of Howard Industries following Gonzalez’s plea hearing. “Since before the worksite investigation, Howard Industries had taken the following immigration compliance steps:” 1) “even before it was mandated, the company voluntarily participated in identification-verification systems, whereby the federal government checked the information maintained in the government’s databases” (E-Verify) 2) “implemented a fingerprint identification system to prevent the use of false identities” and 3) “the company also retained outside legal counsel to review all of the company’s human resource processes and procedures to insure they meet or exceed all immigration compliance legal requirements.”

Tommy Eden is an Auburn attorney with Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law, and presented throughout the State of Alabama on Immigration Workplace Compliance and also to the Governor’s Commission in 2008. He can be contacted at or 334-501-1540.

Wednesday, March 9, 2011

U.S. Supreme Court Lets Stand Ruling that Pharmaceutical Sales Representatives Are Due Overtime Pay

By: Tommy Eden, Attorney

On February 28, 2010 the U.S. Supreme Court denied review of 2nd Circuit decision in which pharmaceutical sales representatives where found not to be exempt employees and thus entitled to receive overtime pay The Court announced its decision to deny certiorari in Novartis Pharmaceuticals Corp. v. Lopes et al as well as in Kuzinski v. Schering Corp (2d Cir. 2010), in which the 2nd U.S. Circuit Court of Appeals relied on Novartis and affirmed a district court decision determining that pharmaceutical sales representatives for Schering Corporation are not exempt under the outside sales exemption of the Fair Labor Standards Act (FLSA). This decision has far reaching implications and will affect every pharmaceutical sales representative in the U.S.

The 2nd Circuit ruled that pharmaceutical sales representatives for Novartis Pharmaceuticals Corporation do not meet the criteria for either the administrative or outside sales exemptions of the FLSA and are, thus, entitled to overtime pay for work in excess of 40 hours in a week. In their Opinion in Kuzinski v. Schering Corp. the 2nd Circuit gave controlling deference to an amicus curiae brief filed by the Department of Labor on behalf of the plaintiffs. The 2nd Circuit held that because pharmaceutical sales representatives are prohibited under federal law from actually entering into contracts to sell their employer’s prescription drug products, they do not qualify for the outside sales exemption, despite long-standing DOL acquiescence in the consistent practice in this highly regulated industry of treating these sales representatives as exempt. The court also held that the highly regulated nature of the pharmaceutical industry prevented these employees from exercising “sufficient” independent judgment and discretion to qualify for the administrative exemption.

Common Sense Counsel: time for Workplace Law Compliance Audit. With the DOL’s new resources of 250 investigators, employers can expect to face additional pressure from the government. Wage and hour compliance is one of the most difficult problems for employers. As employers try to stay competitive, employees may have a wider range of responsibilities causing the line between exempt and nonexempt employee classifications to blur. Alabama employers should review their policies and procedures before a government compliance officer, or a plaintiff’s attorney, arrives at their door:

• classification of exempt, nonexempt, and independent contract workers;
• commissions, bonuses, incentive payments, and other compensation programs;
• overtime pay calculations;
• family and medical leave;
• recordkeeping requirements; and
• well drafted job descriptions are a key in these audits.

Tommy Eden is a native 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.

Sunday, March 6, 2011

UAW on its last legs, but it wants into Alabama

Published Birmingham News: Sunday, March 06, 2011
By HENRY HAGOOD JR. (Henry Hagood Jr. is the CEO of the Alabama Associated General Contractors)

“If United Auto Workers President Bob King had his way, his union would finally gain a foothold in the staunchly right-to-work Heart of Dixie, even at the expense of our state's economy.” See the rest of the story at

For preventative TIPS see WEDNESDAY, FEBRUARY 9, 2011 Blog
Foreign Automotive Manufacturers in UAW Crosshairs

Saturday, March 5, 2011

USCIS Announces Proposed H-1B Electronic Registration System to Reduce Costs for U.S. Businesses

U.S. Citizenship and Immigration Services (USCIS) has published a proposed rule that could save U.S. businesses more than $23 million over the next 10 years by establishing an advance registration process for U.S. employers seeking to file H-1B petitions for foreign workers in specialty occupations. The proposed electronic system would minimize administrative burdens and expenses related to the H-1B petition process—including reducing the need for employers to submit petitions for which visas would not be available under the statutory visa cap.

USCIS Director Alejandro Mayorkas announced on March 2, 2011, the opening of a 60-day comment period that will allow businesses and the general public to provide input on the proposed system in order to ensure it best meets the needs of employers that rely on H-1B visas to bring in foreign workers for specialty occupations.
“The proposed rule would create a more efficient and cost-effective process for businesses interested in bringing workers in specialty occupations to the United States,” he said. “Improving the H-1B petition process is part of USCIS’s ongoing efforts to leverage new ideas and innovation to streamline our operations and enhance customer service.”

Under the proposed rule, employers seeking to petition for H-1B workers subject to the statutory cap would register electronically with USCIS—a process that would take an estimated 30 minutes to complete. Before the petition filing period begins, USCIS would select the number of registrations predicted to exhaust all available visas. Employers would then file petitions only for the selected registrations. The registration system would save employers the effort and expense of filing H-1B petitions, as well as Labor Condition Applications, for workers who would be unable to obtain visas under the statutory cap.

The proposed rule, which posted to the Federal Register today for public viewing, contains complete details about the registration system and estimated cost savings. USCIS encourages formal comments on the proposed rule through The comment period runs for 60 days, beginning March 3, 2011, and ending on May 2, 2011.

For more information on the proposed H-1B rule, please see the accompanying Fact Sheet. For more information on USCIS and its programs, visit

Friday, March 4, 2011

Reservist Fired Based on Anti-Military Animus

Alabama@ Work
By: Tommy Eden, Attorney

Vincent Staub was employed by Proctor Hospital as an angiography technologist as well as a veteran member of the United States Army Reserve. Staub's immediate supervisor scheduled Staub to work on the weekend rotation, creating conflicts with his drill schedule and also scheduled him for extra shifts so, in her words, “he could pay back the department for everyone else having to bend over backwards to cover [his] schedule for the Reserves,…that Staub’s ‘military duty had been a strain on th[e] department…and asked other employees to help her get rid of him.” Staub reported the comments to the Department Head. Unfortunately, he also allegedly made similar comments about Staub’s reservist duties, characterizing his military obligations as "a b[u]nch of smoking and joking and [a] waste of taxpayers['] money."

After Staub complained to the Department Head, Staub was allegedly issued a false "Corrective Action" by the supervisor for purportedly “violating a hospital rule requiring him to stay in his work area whenever he was not working with a patient.” The Hospital rule did not exist. Four months later it as asserted by the supervisor that Staub had left a desk and thus violated the Corrective Action; which he did not. Relying solely on the supervisor’s accusation, the Hospital Administrator fired Staub.

Staub filed suit against Proctor Hospital claiming that his discharge was motivated by hostility to his obligations as a military reservist in violation of Uniformed Services Employment and Reemployment Rights Act (USERRA) and a jury found in his favor and awarded him $57,640 in damages. During the trial Staub argued that while the hospital administrator was not hostile to his military obligations, his supervisor and department head improperly influenced the ultimate adverse employment decision.

In a unanimous opinion, on March 1, 2011, the U.S. Supreme Court held that an employer may be held liable for employment discrimination under USERRA based on the discriminatory animus of an employee who influenced, but did not make, an ultimate employment decision. In this so called “cat's paw" theory of liability [fn1 The term “cat’s paw” derives from a fable conceived by Aesop, put into verse by La Fontaine in 1679, and injected into United States employment discrimination law by Posner in 1990. See Shager v. Upjohn Co., 913 F. 2d 398, 405 (CA7). In the fable, a monkey induces a cat by flattery to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing. A coda to the fable (relevant only marginally, if at all, to employment law) observes that the cat is similar to princes who, flattered by the king, perform services on the king’s behalf and receive no reward], the high court held that "if a supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA." Staub v. Proctor Hospital to read full opinion.

Common Sense Counsel: the hospital did not conduct an independent investigation of the allegations on which it relied to terminate Staub which would have enabled the employer to prove its decision maker solely relied on reasons unrelated to the supervisors' original biased comments. There was no evidence of an USERRA policy in the Employee Handbook. The Court held, “if an employer's investigation results in an adverse action for reasons unrelated to the supervisor's original biased action ... then the employer will not be liable.” See 5 Steps to Bullets Proofing You Discharge Decision published in the O&A News 2-27-2011.

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.