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Friday, May 27, 2011

OSHA fines Huntsville cabinet maker $54,000


Alabama@Work
Tommy Eden, Attorney

On May 16, 2011, the U.S. Department of Labor's Occupational Safety and Health Administration cited Huntsville American Cabinets Inc. in Huntsville for 21 safety and health violations, including the accumulation of combustible dust.
Proposed penalties total $54,000.

OSHA began an inspection in January as part of its National Emphasis Program on Amputations and cited the cabinet maker for 16 serious safety violations with penalties of $44,400 for failing to keep walls, floors and equipment clean and free from the accumulation of combustible dust; allowing more than 60 gallons of flammable liquid to be stored in cabinets; not selecting the correct personal protective equipment for workers handling chemicals; failing to have a lockout/tagout program to prevent accidental energy start-up; not having standard railings on the stairs; several electrical deficiencies; and amputation hazards associated with a lack of machine guarding.

Four serious health violations with $9,600 in proposed penalties are related to not providing hearing tests for employees exposed to noise levels over the permissible exposure limit; failing to develop a respiratory protection program; exposing workers to respirable dust 3.6 times the permissible exposure limit; and lacking a hazard communications program for handling hazardous chemicals. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.

One other-than-serious violation was cited with no monetary penalty for failing to visually inspect fire extinguishers at least monthly. An other-than-serious citation is one that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm.

"This company has jeopardized the health and safety of its workers by creating an environment where the accumulation of combustible dust could ignite and cause serious injuries," said Roberto Sanchez, OSHA's area director in Birmingham. "The accumulation of combustible dust and all hazards must be eliminated from the workplace." For information on combustible dust, visit http://www.osha.gov/dsg/combustibledust/index.html.

The company has 15 business days from receipt of the citations and proposed penalties to comply, request an informal conference with OSHA's area director or contest the findings before the independent Occupational Safety and Health Review Commission.

Common Sense Counsel: It is advised that you have a comprehensive safety audit conducted ASAP. The next time the Government “come to help you” the cost of being in the wrong just went up.

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 tme@chlaw.com or 334-501-1540.

Bankruptcy Filing Fair Game in Hiring Decision


Alabama@Work
By: Tommy Eden, Attorney

In 2008 Eric Myers filed for bankruptcy in North Carolina before moving to Florida to seek a fresh start. Myers then applied for a managerial position at Toojay's Gourmet Deli where he signed a background check release which permitted the Deli to conduct a "comprehensive review" of his background, including a review of his "credit history and reports." Later, Toojay's notified Myers that it was rescinding its offer and he would not be hired because of the previous bankruptcy filing that appeared in his credit report. Rather upset on hearing this news, Myers then sued Toojay's, claiming that its refusal to hire him because of his bankruptcy filing constituted a violation of the Federal Bankruptcy Code.

On May 17, 2011, the Eleventh Circuit Court of Appeals, in Myers v. Toojay's Management Corporation, disagreed and held that if Congress had intended that private employers were to be prohibited from basing a hiring decision on this factor, as public employers were prohibited, it would have drafted the Bankruptcy Code to achieve that goal.

A section of the Bankruptcy Code prohibits employers from taking certain actions against people who are or have been in bankruptcy. 11 U.S.C. § 525. The first subsection of that section applies to government employers and provides that they may not “deny employment to, terminate the employment of, or discriminate with respect to employment against” a person on that ground. The second subsection provides that a private employer may not “terminate the employment of, or discriminate with respect to employment against” an individual on that ground but makes no mention of “hiring.”

With this ruling, private employers in the following states may consider bankruptcy filings when making hiring decisions: Alabama, Delaware, Florida, Georgia, Louisiana, Mississippi, New Jersey, Pennsylvania and Texas.

Common Sense Counsel: If an Alabama employer considers a bankruptcy filing to be an important predictor for an applicant's suitability for a position, then consider the following: 1) do not attempt to distinguish the different types of bankruptcy filings, or reasons, when making hiring decisions as it may lead to inconsistent results; 2) adopt a rule that prior bankruptcy filings automatically disqualify an applicant; 3) following all requirements of the Fair Credit Reporting Act (FCRA) by having a compliant, written release and supplying the applicant with a copy of the notice mandated by the FCRA; 4) include criteria in your job description covering the issue of handling of money or confidential information; and 5) be careful if it is a minority applicant so you do not run afoul of EEOC regulations.

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 tme@chlaw.com or 334-501-1540.

Union’s Giant inflatable Rat not coercive


Alabama@Work
By: Tommy Eden, Attorney

The National Labor Relations Board (NLRB) ruled on May 26, 2011 that a union practice of displaying a large inflatable rat balloon at a secondary employer’s premises to protest the labor practices of its non-union contractor is not coercive, and so does not violate U.S. labor law.

The 3-to-1 Board decision follows the reasoning laid out by the Board in Carpenters Local 15006 (Eliason & Knuth of Arizona, Inc.), 355 NLRB No. 159 (2010), which found the display of large stationary banners at secondary employer locations was not unlawful. The National Labor Relations Act prohibits conduct found to “threaten, coerce, or restrain” a secondary employer not directly involved in a primary labor dispute, if the object of that conduct is to cause the secondary to cease doing business with the primary employer.

Under existing precedent, picketing that seeks a consumer boycott of a secondary is usually coercive and therefore unlawful, whereas stationary handbilling with that same object is not, and is therefore protected speech. The question before the Board was where the use of a 16-foot-tall inflatable rat balloon falls on that continuum. The Board majority found that the balloon display did not involve any confrontational conduct, unlike picketing, nor was the display coercive in other ways.

Rather, the Board found that the “rat balloon itself was symbolic speech. It certainly drew attention to the Union’s grievance and cast aspersions on [the contractor], but we perceive nothing in the location, size or features of the balloon that were likely to frighten those entering the hospital, disturb patients or their families, or otherwise interfere with the business of the hospital.” The same union earlier conducted a mock funeral in front of an acute care hospital which the NLRB found was unlawfully coercive.

Common Sense Counsel: when Unions are involved you can usually smell a rat. As stated by the lone dissenting Board member:” For pedestrians or occupants of cars passing in the shadow of a rat balloon, which proclaims the presence of a “rat employer” and is surrounded by union agents, the message is unmistakably confrontational and coercive.” Conducting TIPS Training for your supervisors now is the best way to take preventive action. With regards to unions, under the NLRA an employer can not Threaten, Interrogate, Promise or Spy. See my article Foreign Automotive Manufacturers in UAW Crosshairs and 7 steps which can help your company avoid being a target for the Big Rat Campaign.

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 tme@chlaw.com or 334-501-1540.

Supreme Courts Gives States Green Light on Immigration Enforcement


Alabama@Work
By: Tommy Eden, Attorney

The Immigration Reform and Control Act (IRCA) makes it “unlawful for a person or other entity . . . to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.” 8 U. S. C. §1324a(a)(1)(A). Employers that violate that prohibition may be subjected to federal civil and criminal sanctions as I have written about in several past articles. IRCA also restricts the ability of States to combat employment of unauthorized workers; the Act expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” §1324a(h)(2).

IRCA also requires employers to take steps to verify an employee’s eligibility for employment. In an attempt to improve that verification process in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Congress created E-Verify—an internet-based system employers can use to check the work authorization status of employees. Against this statutory background, several States have recently enacted laws attempting to impose sanctions for the employment of unauthorized aliens through, among other things, “licensing and similar laws.” Arizona is one of them. The Legal Arizona Workers Act provides that the licenses of state employers that knowingly or intentionally employ unauthorized aliens may be, and in certain circumstances must be, suspended or revoked. That law also requires that all Arizona employers use E-Verify. The Alabama Legislature is currently in conference committee on its immigration reform bill with similar language.

The Chamber of Commerce of the United States and various business and civil rights organizations suit in Federal Court in CHAMBER OF COMMERCE OF UNITED STATES OF AMERICA v. WHITING arguing that the Arizona law state law’s license suspension and revocation provisions were both expressly and impliedly preempted by federal immigration law, and that the mandatory use of E-Verify was impliedly preempted.

The U.S. District Court Judge found that the plain language of IRCA’s preemption clause did not invalidate the Arizona law because the law did no more than impose licensing conditions on businesses operating within the State. Nor was the state law preempted with respect to E-Verify, the court concluded, because although Congress had made the program voluntary at the national level, it had expressed no intent to prevent States from mandating participation. The Ninth Circuit Court of Appeals affirmed. On May 26, 2011 the U.S. Supreme Court Affirmed finding “Arizona’s licensing law falls well within the confines of the authority Congress chose to leave to the States and therefore is not expressly preempted.”

Common Sense Counsel: all Alabama Employers should expect that the Alabama Legislature will pass in this session Immigration Legislation that will mandate the use of E-Verify and impose new business licensing requirements. You can get ready by taking the following steps now:
• Enroll in E-Verify at https://e-verify.uscis.gov/enroll/StartPage.aspx?JS=YES
• Even if you are not a federal contractor (it is an employer’s only get out of jail card with Immigration Compliance and Enforcement (ICE);
• Schedule I-9 Supervisor Training because the E-Verify system is only as good as the information collected on your I-9 forms;
• Put an E-Verify policy in your employee handbook; and
• Make sure you are using the latest version of Form 1-9.

Tommy Eden is a Lee County native and 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 tme@chlaw.com or 334-501-1540.

Thursday, May 19, 2011

Walmart Settles EEOC Latinos Harassment Suit


By, Tommy Eden, Attorney
Alabama@Work

A least nine employees of Mexican descent at the Sam’s Club in Fresno, California, owned by Wal-Mart, endured ethnic slurs and derogatory remarks by a fellow co-workers since late 2005. They were reportedly barraged with near-daily insults about Mexicans, such as “f----n’ wetbacks,” and references to Mexicans only being good for cleaning the harasser’s home, according to the EEOC lawsuit brought on their behalf.

The harasser, Hispanic herself, even threatened to report three of the victims to immigration authorities despite their legal status. The victims and harasser – all female – worked in the demonstration department, serving food samples to customers.

These Sam’s Club employees complained about the hostile work environment to management as early as April 2006, and nothing was done. The harassment only intensified after their complaints and led to further intimidation. Another store employee began deriding a victim for her inability to speak English. When the official EEOC charge of discrimination was filed in October 2006, Sam’s Club finally discharged the Hispanic harasser in December 2006.

In May 2009, the EEOC filed its lawsuit in the U.S. District Court, Eastern District of California, EEOC v. Walmart Stores, Inc. dba Sam’s Club, et al., claiming that the harassment, and Wal-Mart’s failure to appropriately address it, was in direct violation of Title VII of the Civil Rights Act of 1964. Sam’s Club agreed to pay the victims $440,000 and furnish other relief to settle this national origin harassment lawsuit on April 14, 2011.

Aside from the monetary relief, Sam’s Club entered into a three-year Federal Court consent decree which requires it to comply with the following at the stores in question:
• review and make available its policies against and complaint procedures for national origin discrimination, harassment and retaliation;
• provide training to non-management employees in the Fresno location regarding anti-discrimination laws, including national origin discrimination and harassment;
• provide separate training to management employees in the Fresno and Bakersfield locations which will including training on how to receive, investigate, or report to designated officials complaints of national origin discrimination, harassment and retaliation;
• set up a record-keeping procedure for the Fresno location that provides for the centralized tracking system for such complaints;
• report the handling of such complaints and compliance with the decree to the EEOC; and
• provide neutral references for the victims upon inquiry.

Common Sense Counsel: it is well understood that a work environment that is free of harassment ensures a more productive and harmonious workplace for all. Alabama employers failing to take immediate action when they receive a report of such policy violation send a message that such behavior is tolerated, giving license for others to do the same. Several of the terms of the consent decree are actually good employment risk reduction practices for all Alabama employers to consider.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard 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 tme@chlaw.com or 334-501-1540.

NLRB Puts Boeing Dreamliner in Holding Pattern


Alabama@Work
By: Tommy Eden, Attorney

On March 26, 2010, the International Association of Machinists and Aerospace Workers filed a charge with the National Labor Relations Board (NLRB) alleging that the Boeing Company had engaged in multiple unfair labor practices related to its decision to place a second production line for the 787 Dreamliner airplane in a non-union facility in South Carolina.

Specifically, the union charged that the decision to transfer the line was made to retaliate against union employees for participating in past strikes and to chill future strike activity. The Machinists’ union has represented Boeing Company employees in the Puget Sound area of Washington, where the planes are assembled, since 1936.

The NLRB investigation found that Boeing officials communicated the unlawful motivation in multiple statements to employees and the media. For example, a senior Boeing official said in a videotaped interview with the Seattle Times newspaper: "The overriding factor in transferring the line was not the business climate. And it was not the wages we’re paying today. It was that we cannot afford to have a work stoppage, you know, every three years."

On April 20, 2011, a complaint was then issued by the NLRB Acting General Counsel alleging that Boeing violated two sections of the National Labor Relations Act by “making coercive statements and threats to employees for engaging in statutorily protected activities, and by deciding to place the second line at a non-union facility, and establish a parts supply program nearby, in retaliation for past strike activity and to chill future strike activity by its union employees.” The complaint also alleges that Boeing’s actions were “inherently destructive of the rights guaranteed employees by Section 7 of the Act."

To remedy the alleged unfair labor practices, the Acting General Counsel seeks an order that would require Boeing to maintain the second production line in Washington State. Absent a settlement between the parties, the next step in the process will be a hearing before an NLRB administrative law judge in Seattle, set for June 14, at which both parties will have an opportunity to present evidence and arguments.

Common Sense Counsel: loose lips can sink ships and multi-national airplane manufactures. It is critically important that your company strictly control what your CEO and front line supervisors say about the possible adverse effects of unionization on your company. Conducting TIPS Training is the best way to take preventive action. With regards to unions, under the NLRA an employer can not Threaten, Interrogate, Promise or Spy. See my article Foreign Automotive Manufacturers in UAW Crosshairs and 7 steps which can help your company avoid being a target for a slick talking union organizer

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 tme@chlaw.com or 334-501-1540.

Improved Employment of Protected Veterans


Alabama@ Work
By Tommy Eden, Attorney

The U.S. Department of Labor's Office of Federal Contract Compliance Programs announced on April 26, 2011 a proposed rule to strengthen affirmative action requirements of federal contractors and subcontractors for veterans protected under the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA). Veterans protected include those with disabilities and those recently discharged as well as those who served during a war, campaign or expedition for which a campaign badge is authorized. The proposed rule has been published in the April 26 edition of the Federal Register at http://www.gpo.gov/fdsys/pkg/FR-2011-04-26/html/2011-8693.htm

The award of a federal contract comes with a number of responsibilities. Among them are complying with non-discrimination and affirmative action provisions, engaging in meaningful and effective efforts to recruit and employ veterans protected under VEVRAA, and maintaining accurate records on affirmative action efforts. Failure to abide by these responsibilities may result in various sanctions, from withholding progress payments to termination of existing contracts and debarment from receiving future ones.

The framework articulating a contractor's responsibilities with respect to affirmative action, recruitment and placement has remained unchanged since 1976. Increasing numbers of veterans are returning from tours of duty, and many are faced with substantial obstacles in finding employment upon leaving the service.

The proposed rule clarifies mandatory job listing requirements, under which a contractor must provide job vacancy and contact information for each of its locations to an appropriate employment service delivery system. The rule proposes requiring contractors to engage in at least three specified types of outreach and recruitment efforts each year. In addition, the proposed rule would require that all applicants be invited to self-identify as a "protected veteran" before they are offered a job. Increasing data collection on job referrals, applicants and hires, and requiring contractors to establish hiring benchmarks to assist in measuring the effectiveness of their affirmative action efforts also are proposed.

In addition to VEVRAA, OFCCP's legal authority exists under Executive Order 11246 and Section 503 of the Rehabilitation Act of 1973. As amended, these three laws hold those who do business with the federal government, both contractors and subcontractors, to the fair and reasonable standard that they not discriminate in employment on the basis of gender, race, color, religion, national origin, disability or status as a protected veteran. General information is available at http://www.dol.gov/ofccp.

Common Sense Counsel: with great opportunity to contract with the federal government, also come great obligations. A Governmental contractor must maintain an approved written affirmative action plan, post appropriate notices on bulletin boards, training its supervisory workforce, self monitor its own compliance, establish goals and other related program requirements. Fair warning: this agency aggressively audits and investigates. Dealing with the government is clearly not a do-it-yourself program.

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 tme@chlaw.com or 334-501-1540

Updated Form I-9 Process


Alabama@Work
By: Tommy Eden, Attorney

In April Chun Yan Lin of Doraville, Ga., was sentenced to two years in federal prison for conspiring to transport and harbor illegal aliens under the cover of his employment agency. In all, 23 defendants have been sentenced and 10 employment agencies shut down.

Lin owned an employment agency called "Lucky," in Chamblee, Ga., and conspired with other employment agency owners to transport and provide jobs to illegal aliens. They were primarily placed in restaurant jobs but did not request any proof that the aliens had permission to be or work in the United States or fill out Form I-9. Lin charged the undocumented aliens a commission and transportation fee to place them in a restaurant or other job site and to drive them there, or in some cases charged the restaurant owners, who deducted the fees from their illegal workers' modest pay.

Two new federal initiatives meant to stop this kind of illegal activity will also affect all Alabama employees. First, the Social Security Administration (SSA) has resumed its No Match or “Request for Employer Information” letter stating that the information reported on an individual’s W-2 or W-2c form does not match the SAA records.

When an employee or an employer receives a No Match letter, they should have the employee contact the SSA. A No Match letter alone should not be the basis for taking adverse action against an employee, rather the employee should be given an opportunity to make a correction or provide documentation. The employer should document its efforts to obtain the corrected information in its records.

Second, the U.S. Citizenship and Immigration Services (USCIS) has published its new interim final rule which made certain changes to the I-9 process effective May 16, 2011. As a part of the verification process, employers must complete a Form I-9, retain the form for a statutorily established period of time, and make the form available for inspection by certain government officials.

Key Form I-9 process changes: 1) employers are required to accept only unexpired documents; 2) deleting outdated documents from the list of acceptable documents; and 3) continue to use the two most recent versions of the Form I-9 (Rev. 08/07/2009 and 02/02/2009) with an expiration date of Aug. 31, 2012.

Common Sense Counsel: Four Steps to avoid becoming Mr. “Lucky”:
• Use the DHS employment eligibility verification program E-Verify to verify the employment eligibility of all new hires;
• Permit the I-9 and E-Verify process to be conducted only by individuals who
have received formal training;
• Document the definitive resolution of no-match letters received
from the Social Security Administration (SSA)
• Establish and maintain appropriate Immigration policies, practices and safeguards

Tommy Eden is an 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 tme@chlaw.com or 334-241-8030 for forms to address the above issues.

OSHA Takes Aim at Distracted Driving


Alabama@Work
By: Tommy Eden, Attorney
The federal Occupational Safety and Health Administration will be holding employers responsible for accidents caused by employees who are distracted by cell phone usage while driving during the course of their employment.

David Michaels, the head of OSHA, recently announced his agency’s intention to issue a citation or fine for distracted driving. The first cases OSHA wants to pursue are those in which an accident results from an employer setting up a situation where an employee has a strong incentive or is required to use a phone while driving. Employers can be held accountable for such accidents under the general duty clause of OSHA, which requires employers to provide a workplace free of recognized hazards.

Dangers of distracted driving according to OSHA:
• Distracted driving crashes killed more than 5,400 people and injured nearly
500,000 in 2009.
• Researchers report that texting while driving claimed more than 16,000 lives
from 2001 to 2007.
• Reaction time is delayed for a driver talking on a cell phone as much as it is for a driver who is legally drunk.
• Drivers who are texting take their eyes off the road 400% more than when they are not texting.
• More texting leads to more crashes. With each additional 1 million text messages, fatalities from distracted driving rose more than 75%

OSHA is partnering with others across government, industry and the public to bring together important information and tools to attack texting while driving and other distracted driver hazards. The DOT has developed a distracted driving website at www.distraction.gov.

On Oct. 1, 2009, President Obama released an executive order banning text messaging while driving for federal employees. As part of the executive order, federal agencies must also encourage federal contractors, subcontractors, recipients, and sub-recipients of government contracts, grants to adopt and enforce policies that ban text messaging while driving.

Common Sense Counsel: with this latest action by the federal government, and the numerous states that already have text messaging while driving bans, of which I predict Alabama will be one before the end of this session, it is more critical than ever that all Alabama employers consider implementing in their Employee Handbooks a wireless communication device policy like this:

Wireless Communications Devices Use
Employees cannot use wireless communications devices, including cell phones and text messages, when driving on Company business. Drivers who need to use a wireless communications device must pull over to a safe location before using the device.

Failing to take such preventative steps now can make you an easy target when your employee is involved in a serious rear end accident while texting.

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 tme@chlaw.com or 334-501-1540.

Starbucks Grande Too Tall for EEOC


Alabama@Work
By: Tommy Eden, Attorney

Soon after being hired by the El Paso Starbucks on July 27, 2009 Elsa Sallard asked to use a stool or small stepladder to perform the essential functions of preparing drink orders including a Mocha Coconut Frappuccino, operating the cash register and serving customers at the high serving counter.

Elsa has the physical impairment of dwarfism, which was obvious when she was hired by Starbucks Coffee Company to work in the customer service position of Barista. Elsa is substantially limited in the major life activities of reaching, lifting and performing manual tasks, all of which her position required. Starbucks disregarded Elsa’s request and refused to consider her use of a stool or stepladder. Her supervisor never engaged in the Americans with Disabilities (ADA) mandated interactive dialogue before saying no. On the same day that Elsa requested the accommodation, July 30th, Starbucks terminated her employment, claiming that she could pose a danger to customers and employees.

The U.S. Equal Employment Opportunity Commission (EEOC) did not see it that way. After it first attempted mediation, it filed suit on May 11, 2011 in the U.S. District Court for the Western District of Texas, alleging that Starbucks violated federal law by denying a reasonable accommodation to a Barista with dwarfism and then firing her because of her disability.

The lawsuit alleges that such conduct violates Title I of the Americans with Disabilities Act as Amended (ADAA), which prohibits employers from discriminating against qualified individuals with disabilities in hiring, firing, job application procedures, advancement, compensation, job training and other terms and conditions of employment. The ADAA requires employers to make reasonable accommodations for employees’ and applicants’ disabilities as long as this does not pose an undue hardship.

The EEOC is seeking injunctive relief, including the formulation of policies to prevent and correct disability discrimination. The suit also seeks lost wages and compensatory damages for Sallard and punitive damages against Starbucks Coffee Company, as well as attorney fees.

Common Sense Counsel: Employers cannot ignore a request for a reasonable accommodation by a qualified individual with a disability, as is alleged in this case. Apparently, Starbucks flatly refused to discuss Ms. Sallard’s reasonable request. Instead, they assumed the worst and fired her. The ADAA was enacted to prevent that kind of misguided, fear-driven reaction. Employers should be careful when declining to engage in the ADA interactive process which can uncover inexpensive accommodations, and documenting good-faith participation in the process can strengthen an employer’s position against an ADAA claim. Remember to always make the employee go first in suggesting an accommodation and make sure in every job description you include the essential job functions.

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 tme@chlaw.com or 334-501-1540.