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Saturday, July 30, 2011

Auburn University Drug Free

By Tommy Eden, Attorney

Auburn University will have a new Drug and Alcohol Testing Program Policy applicable to all staff, faculty and facilities employees beginning Monday August 1, 2011. The AU policy posting reflects it was adopted March 22, 2011. The Policy Statement goals are to create and maintain a safe, drug-free environment for all of its employees while also helping those with drug and alcohol problems, increasing work performance, reducing accidents and damage, complying with federal law and protecting the reputation of the University.

Under the Policy, all University employees must report to work free from the influence of alcohol, and without illegal or mind-altering substances in their system. Employees are not allowed to operate a motor vehicle or hazardous equipment or perform jobs in hazardous environments while under the influence of any controlled substances, including prescription medications and no employee may use alcohol or illegal drugs while on duty. All University employees will need to notify their supervisor of any legally prescribed or OTC medications that may affect their ability to perform in a safe manner.

Certain University employees covered by federal motor safety laws will be subject to scheduled and random drug and alcohol testing. Other University employees subject to Department of Defense regulations will also be subject to random drug testing based on the nature of the position. The University will inform all such employees whether they will be subject to such testing. Some regulated jobs may require post-offer/pre-employment testing as well.

All University employees will be subject to drug and alcohol testing if there is a reasonable suspicion of use and after any on the job accident, as well as those in follow-up testing programs. There will be training and substance abuse help for those who come forward.

University employees who violate the 2009 Drug-Free Campus and Workplace Policy, or this new 2011 Workplace Policy, or who refuse to cooperate will be subject to discipline, including termination. All records related to drug and alcohol testing will remain confidential.

Common Sense Counsel: Auburn University is doing what thousands of Alabama employers have already done: try to minimize the adverse effects substance abuse has on the workplace. In Alabama, it also gets you a 5% premium discount on Workers Compensation Insurance. It is well documented that those engaged in substance abuse have higher incidents of accidents, absenteeism, misconduct, turnover and a non caring uncommitted attitude. Think Professor Donald Sutherland in Animal House. In times like these, where every institution has to do more with less, an effective substance abuse program with testing accountability is the right thing to do.

Reading this comprehensive 22 page policy is just common sense counsel. Policy at:

Tommy Eden is a Lee County native, an attorney with Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law, and on the EASHRM Board of Directors. He can be contacted at or 334-501-1540.

Monday, July 18, 2011

Muslim Head Scarf not “the look” for Abercrombie Kids

By Tommy Eden, Attorney

Abercrombie Kids, a division of national clothing retail giant Abercrombie & Fitch, refused to hire Samantha Elauf, a 17-year-old Muslim girl, in June 2008 for a position at its store in Woodland Hills Mall in Tulsa, Okla., because she was wearing the hijab when she was interviewed and this violated the company’s “look policy.” The “look policy” prohibited the wearing of any head coverings. Abercrombie claimed that allowing Samantha to wear a hijab would cause an undue burden on the conduct of its business. Samantha claimed to be a typical American teenager who has a sincere religious belief that she must wear a head scarf.

The U.S. Equal Employment Opportunity Commission (EEOC) then gave Abercrombie Kids policy “the look” and charged that it failed to hire Samantha for a sales position because she wore a hijab, or head scarf, in observance of her sincerely held religious beliefs. Abercrombie Kids had previously allowed numerous exceptions to its “look policy,” including eight or nine head scarf exceptions. Suit was filed in EEOC v. Abercrombie & Fitch Stores, Inc under Title VII of the Civil Rights Act of 1964, as amended, which protects workers from discrimination based upon religion. Title VII requires employers to provide reasonable accommodations for the religious practices of its applicants and employees when to do so would not be an undue hardship.

On July 15, a Tulsa federal judge agreed with the EEOC on its Motion for Summary Judgment that Abercrombie Kids committed religious discrimination finding that it failed to produce sufficient evidence to dispute the EEOC’s sworn evidence. Damages will be determined by a jury at a later date. The Court's ruling made it clear that an employer's "corporate image" policy does not relieve an employer of the obligation to provide a reasonable religious accommodation.

Common Sense Counsel: Employers need to understand their obligation to balance employees’ needs and rights to practice their religion with the conduct of their business. Where there is a minimal impact on the business, those religious needs must be accommodated. The denial of a request for a reasonable accommodation of an employee’s or applicant’s religious beliefs must be based on demonstrated facts, not guesswork or speculation.

A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his/her religion. An employer might accommodate an employee's religious beliefs or practices by allowing: flexible scheduling, voluntary substitutions or swaps, or modification of grooming requirements.

Religious discrimination is a hot button issue for the EEOC. Have a well drafted handbook policy and be in an “accommodating” mood when approached by your scarf wearing employee or an applicant.

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.

Monday, July 11, 2011

No Fault Attendance Policy Costs Verizon Millions

By: Tommy Eden, Attorney

In the largest ADA settlement in EEOC history, a class of hundreds of Verizon Communications employees terminated or disciplined based on a rigid attendance policy, will receive $20 million to resolve a nationwide class disability discrimination settled on July 6 by the U.S. Equal Employment Opportunity Commission (EEOC). The Maryland suit, filed against 24 named subsidiaries of Verizon Communications, said the company unlawfully denied reasonable accommodations to hundreds of employees and disciplined and/or fired them pursuant to Verizon’s “no fault” attendance plans.

The EEOC charged that Verizon violated the Americans with Disabilities Act (ADA) by refusing to make exceptions to its “no fault” attendance plans to accommodate employees with disabilities. Under the challenged attendance plans, if an employee accumulated a designated number of “chargeable absences,” Verizon placed the employee on a disciplinary step which could ultimately result in more serious disciplinary consequences, including termination.

The EEOC asserted that Verizon failed to provide reasonable accommodations for people with disabilities, such as making an exception to its attendance plans for individuals whose “chargeable absences” were caused by their disabilities. Instead, the EEOC said, the company disciplined or terminated employees who needed such accommodations.

The ADA prohibits discrimination based on disability. The law also requires an employer to provide a reasonable accommodation, such as paid or unpaid leave, to an employee with a disability, unless doing so would cause significant difficulty or expense for the employer. The EEOC contended that Verizon’s inflexible leave policy denied workers with disabilities a reasonable accommodation to which they’re entitled by law.

The three year consent decree resolves the EEOC’s lawsuit, an EEOC Commissioner charge, a charge filed by the Communications Workers of America, AFL-CIO, and over 40 individual charges filed with the EEOC. In addition to the $20 million in monetary relief, the three-year decree includes injunctions, requires the company to revise its attendance plans, policies and ADA policy to include reasonable accommodations for persons with disabilities, including excusing certain absences. Verizon will provide mandatory periodic training on the ADA to employees primarily responsible for administering Verizon’s attendance plans.

Common Sense Counsel: Can your no fault attendance policy stand up to the new ADAA Regulations? This settlement demonstrates the need for employers to have attendance policies which take into account the need for paid or unpaid leave as a reasonable accommodation for employees with disabilities. The importance of engaging in an individualized interactive process to determine whether a disabled employee must be accommodated under the ADA is the key principle on which the case turned. Time to put your attendance policy to the ADAA Stress Test.

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.

Thursday, July 7, 2011

Texting While Driving Rule for Federal Contractors Effective July 5th

By Tommy Eden, Attorney

Federal contractors are strongly encouraged under a July 5 final rule issued by multiple Federal Agencies to prohibit their employees from texting while driving government vehicles or driving on government business. Federal contractors are also encouraged to conduct programs to educate employees about the hazards of texting while driving. The final rule stems from a 2009 presidential executive order, which strictly prohibited federal employees from texting while driving government vehicles, driving privately owned vehicles on government business, or driving any vehicle for any reason if the device used for texting is supplied by the government.

Common Sense Counsel: with this latest action by the federal government, and the numerous states that have text messaging while driving bans, it is more critical than ever that all Alabama employers consider implementing in their Employee Handbooks a Driver Safety Policy including a wireless communication device policy like this:

Wireless Communications Devices Use
Employees cannot use wireless communications devices, including cell phones and text massagers, 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 litigation 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 or 334-501-1540.

Tuesday, July 5, 2011

Delaware General Assembly Waiting to Inhale

By Tommy Eden

The Delaware General Assembly began experimenting with marijuana legislation with the passage of Senate Bill 17 (“S.B. 17”), on May 11, 2011. The law signed by Governor Markell without ceremony. Delaware is the 16th state, with the District of Columbia, that has laws legalizing marijuana for medicinal purposes.

There are some key differences in the Delaware law that could have a major impact on Delaware employers. As with the other states, S.B. 17 decriminalizes marijuana under state law in certain limited circumstances. Delaware residents with certain specific debilitating medical conditions and who have received certification of a physician may apply for a state-issued medical marijuana card. Cardholders are permitted to possess no more than 6 ounces of marijuana and are not permitted to grow their own.

Cardholders may then legally purchase marijuana at state-licensed non-profit dispensaries known as “compassion centers." Only one state licensed dispensary in each county. The Delaware Department of Health and Social Services which will administer the registrations for patients, caregivers, and compassion centers, has until July 1, 2012, to develop the regulations needed to implement the new law.

However, S.B. 17 differs from most states in that it contains provisions that apply directly to employers. Although the bill prohibits cardholders from using medicinal marijuana at work, it also bars discrimination against them in hiring, termination, or other terms and conditions of employment. S.B. 17 makes it clear that positive drug tests can’t serve as a basis for discipline of a cardholder unless the person “used, possessed, or was impaired by marijuana” at work during normal working hours.

Further, the law states that cardholders “shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment” in a drug test.

Across the nation, courts have held that employers have no duty to accommodate medical marijuana use, under either state law or the federal Americans with Disabilities Act. The ADA, does not protect individuals who are currently using illegal drugs and under federal law marijuana is still an illegal drug.

Common Sense Counsel: Delaware employers should review and revise their drug testing policies in light of S.B. 17. Specifically, the employer should address the employee's use of medical marijuana as a safety issue, as you would with any impairing affect medication. Some jobs are subject to federal regulations prohibiting drug use and imposing testing requirements that cannot be overridden or abrogated by state law.

Tommy Eden is a Lee County native, an attorney with Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law, and on the EASHRM Board of Directors. He can be contacted at or 334-501-1540.

Functional Affirmative Action Program Process For Federal Contractors And Subcontractors Is Back

Alabama@ Work
By Tommy Eden, Attorney

On June 28 The U.S. Department of Labor's Office of Federal Contract Compliance Programs has released a new directive to outline the process by which federal supply and service contractors can apply for Functional Affirmative Action Program agreements, which can be viewed at

Under Executive Order 11246, any company with 50 or more employees and a federal contract of $50,000 or more is required to develop a written affirmative action program for each of its establishments. An AAP helps contractors identify and analyze potential disparities related to the employment of women and minorities.

Where disparities exist, contractors can use AAPs to articulate specific procedures they will follow and good faith efforts they will make to provide equal employment opportunities. FAAP agreements allow large contractors the flexibility to create AAPs by functional or business units rather than by individual establishments. For example, a company could develop an affirmative action program for all sales associates across multiple offices in different states as opposed to creating one for each work site.

OFCCP reviewed its policies regarding the FAAP process and made significant changes, including the requirement of written approval by the OFCCP director before contractors can begin developing FAAPs, thereby eliminating the provision for automatic approval if OFCCP failed to act upon the request within 120 days; shorter terms for FAAP agreements which will now expire after three years, instead of five, at which point a renewal will have to be approved; and the possibility of a compliance evaluation by OFCCP should contractors fail to submit the required annual updates to their FAAP agreements.

All contractors who currently have an approved FAAP agreement will be required to renew it in accordance with the new guidance. Contractors without these agreements should continue to maintain and develop establishment-based AAPs. Answers to frequently asked questions about the FAAP can be found at

The new guidance rescinds a previous directive, Administrative Notice/Functional AAP, issued March 21, 2002, and ends a yearlong suspension in the acceptance of requests to develop or renew FAAP agreements while the program was under review.

In addition to Executive Order 11246, OFCCP's legal authority exists under Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans' Readjustment Assistance Act of 1974. 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. For more information visit

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 or 334-501-1540.

Mandatory Arbitration Prohibited for Department of Defense Contractors

Alabama@ Work
By Tommy Eden, Attorney

On June 29 the Department of Defense issued a final rule restricting DOD contractors' use of mandatory arbitration for claims under Title VII of the Civil Rights Act of 1964 and other claims related to sexual assault or harassment, intentional infliction of emotional distress, false imprisonment, and negligent hiring, supervision, or retention. DOD contracted employers receiving contracts of more than $1 million funded by the fiscal year 2011 DOD appropriations measure, are prohibited from entering into or enforcing agreements requiring employees or independent contractors to resolve the specified types of claims through arbitration. See Section 8012 of the “DOD and Full-Year Continuing Appropriations Act of 2011.”

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 or 334-501-1540

Alabama Immigration Act Complicated for Churches

Church Attorney at the Southeast Law Institute, A. Eric Johnson, wrote an excellent article published in the Sunday July 3rd Birmingham News concerning the dangers churches in Alabama will face transporting and supporting programs for illegal aliens. It is a must read for every Alabama church leader.

Friday, July 1, 2011

Landscaping Contractors pays $18,000 fine following H-2B temporary nonimmigrant worker program inspection


By: Tommy Eden, Attorney

Vanderbilt Landscaping of Nashville, TN has agreed to pay $18,000 in civil money penalties to resolve violations of the federal H-2B temporary nonimmigrant worker program following investigations by the U.S. Department of Labor’s Wage and Hour Division and its Employment and Training Administration. The company also agreed not to participate in the department’s foreign labor certification program for a period of three years under terms of a settlement entered with the department’s Office of Administrative Law Judges.

The Employment and Training Administration of the DOL is charged with administering the H-2B program nationwide. The Wage and Hour Division ensures that all H-2B workers are paid the wages they have earned under federal law.

In its application for H-2B workers, Vanderbilt Landscaping had agreed to comply with all aspects of the program, but a team of Wage and Hour Division investigators found that the company willfully violated some provisions by placing workers outside the approved area of intended employment, not conducting required recruitment of U.S. citizens and misrepresenting the company’s reason for the temporary need for H-2B workers. The company agreed to the settlement without admitting to any violations.

In a separate case, Vanderbilt Landscaping recently agreed to pay $18,496 to 42 workers after an Wage and Hour Division investigation found workers were not compensated for visa and transportation costs that reduced their wages below the federal minimum wage. The company also failed to compensate workers for all hours spent on job duties, resulting in them not receiving overtime pay when hours worked exceeded 40 hours in a week. Back wages in that case have been paid to all workers who could be located.

The H-2B program permits employers to temporarily hire nonimmigrants to perform nonagricultural labor or services in the United States. The employment must be of a temporary nature for a limited period of time, such as a one-time occurrence or for seasonal, peak load and intermittent needs. The H-2B program requires the employer to attest to the Department of Labor that it will offer a wage that equals or exceeds the highest of the following: the prevailing wage, the applicable federal minimum wage, the state minimum wage or the local minimum wage. That wage must be paid to the H-2B nonimmigrant worker for the occupation in the area of intended employment during the entire period of the approved H-2B labor certification. The H-2B program also establishes certain recruitment and displacement standards in order to protect similarly employed U.S. workers.

The Fair Labor Standards Act requires that covered employees be paid at least the federal minimum wage of $7.25 per hour as well as time and one-half their regular hourly rates for every hour they work beyond 40 per week. The law also requires employers to maintain accurate records of employees’ wages, hours and other conditions of employment, and prohibits employers from retaliating against employees who exercise their rights under the law.

Common Sense Counsel: if you are going to use these visa program to bring in foreign workers know and follow the rules. The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs. A U.S. employer must file a Form I-129, Petition for Nonimmigrant Worker, on a prospective worker’s behalf.

To qualify for H-2B nonimmigrant classification:

· The employer must establish that its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as permanent or temporary. The employer’s need is considered temporary if it is a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need

· The employer must demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work

· The employer must show that the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers

· Generally, a single, valid temporary labor certification from the U.S. Department of Labor (DOL), or, in the case where the workers will be employed on Guam, from the Governor of Guam, must be submitted with the H-2B petition. (Exception: an employer is not required to submit a temporary labor certification with its petition if it is requesting H-2B employment in a position for which the DOL does not require the filing of a temporary labor certification application)

H-2B Cap

There is a statutory numerical limit, or “cap,” on the total number aliens who may be provided H-2B nonimmigrant classification during a fiscal year.

Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap. For additional information on the current H-2B cap, see the “Cap Count for H-2B Nonimmigrants” link at

H-2B Program Process

· Step 1: Employer Submits Temporary Labor Certification Application to the Department of Labor. Prior to requesting H-2B classification from USCIS, the employer must apply for and receive a temporary labor certification for H-2B workers with the U.S. Department of Labor (or Guam Department of Labor if the employment will be in Guam).

· Step 2: Employer Submits Form I-129 to USCIS. After receiving a temporary labor certification for H-2B employment from either the U.S. Department of Labor or Guam Department of Labor (if applicable), the employer should file a Form I-129, Petition for Nonimmigrant Worker, with USCIS requesting H-2B workers. The approved temporary labor certification must be submitted with the Form I-129. (See the instructions to the Form I-129 for additional filing requirements.)

·Step 3: Prospective Workers Outside the United States Apply for Visa and/or Admission. After an employer’s Form I-129 is approved by USCIS, prospective H-2B workers who are outside the United States may apply with the U.S. Department of State at a U.S. embassy or consulate abroad for an H-2B visa (if a visa is required) and, regardless of whether a visa is required, apply to U.S. Customs and Border Protection for admission to the United States in H-2B classification.

* Note: Employers requesting employment in a position that is exempt from the U.S. Department of Labor’s temporary labor certification application filing requirement may skip Step 1 in the H-2B process.

H-2B Eligible Countries List

H-2B petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2B program*.

The list of H-2B eligible countries is published in a notice in the Federal Register (FR) by the Department of Homeland Security (DHS) on a rolling basis. Designation of countries on the H-2B list of eligible countries will be valid for one year from publication.

Effective Jan. 18, 2011, nationals from the following countries are eligible to participate in the H-2A and H-2B programs: Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Honduras, Hungary, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Nauru, The Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, and Vanuatu. Of these countries, the following were designated for the first time this year: Barbados, Estonia, Fiji, Hungary, Kiribati, Latvia, Macedonia, Nauru, Papua New Guinea, Samoa, Slovenia, Solomon Islands, Tonga, Tuvalu, and Vanuatu.

* A national from a country not on the list may only be the beneficiary of an approved H-2B petition if the Secretary of Homeland Security determines that it is in the U.S. interest for that alien to be the beneficiary of such a petition. [See 8 CFR 214.2(h)(2)(iii) and 8 CFR 214.2(h)(6)(i)(E)(2) for additional evidentiary requirements.]

Period of Stay

Generally, USCIS may grant H-2B classification for the period of time authorized on the temporary labor certification (usually authorized for no longer than one (1) year). H-2B classification may be extended for qualifying employment in increments of up to one (1) year. The maximum period of stay in H-2B classification is three (3) years.

An individual who has held H-2B nonimmigrant status for a total of three (3) years is required to depart and remain outside the United States for an uninterrupted period of three (3) months before seeking readmission as an H-2B nonimmigrant. See 8 CFR 214.2(h)(13)(iv) for further details on departure requirements.

Family of H-2B Workers

Any spouse and unmarried children under 21 years of age of an H-2B worker may seek admission in H-4 nonimmigrant classification. Family members in H-4 nonimmigrant classification may not engage in employment in the United States.

Employment-Related Notifications to USCIS

Petitioners of H-2B workers must notify USCIS within 2 workdays if an H-2B worker is a:

· No show: an alien who fails to report to work within 5 work days of the employment start date on the H–2B petition

· Absconder: an alien who fails to report for work for a period of 5 consecutive workdays without the consent of the employer

· Termination: an alien who was terminated prior to the completion of agricultural labor or services for which he/she was hired; or

· Early Completion: an alien who completes the H-2B labor or services for which he/she was hired more than 30 days early.

As stated in a notice published by DHS in the federal register on December 19, 2008, petitioners must include the following information in their Employment-Related notification:

1. The reason for the notification (for example, explain that the worker was either a “no show,” “absconder,” “termination,” or “early completion)”

2. The reason for untimely notification and evidence for good cause, if applicable

3. The USCIS receipt number of the approved H–2B petition

4. The petitioner’s information

o Name

o Address

o Telephone number

o Employer identification number (EIN)

5. The employer’s information (if different from that of the petitioner):

o Name

o Address

o Telephone number

6. The H-2B worker’s information:

o Full Name

oDate of birth

o Place of birth

o Last known physical address & telephone number

Additionally to assist USCIS with identification of the H-2B worker, USCIS requests that, if available, petitioners also submit each H-2B worker’s:

· Social Security Number, and

· Visa Number

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. Tommy can be contacted or 334-501-1540

OSHA cites Alabama lumber mill in Vance $121,400 following worker fatality


Tommy Eden, Attorney

The U.S. Department of Labor's Occupational Safety and Health Administration has cited KyKenKee Inc. in Vance, Ala for 15 safety and health violations after a worker was killed in December 2010 when a log fell 13 feet from a debarker conveyor, striking him in the head.

OSHA cited the lumber mill for one willful safety violation related to the incident for failing to fence the area to prevent access and post warning signs. Employees interviewed indicated that logs rolling off the conveyor were an ongoing hazard, but the company had chosen not to address the problem. A willful violation is one committed with intentional knowing or voluntary disregard for the law's requirements, or with plain indifference to worker safety and health.

Ten serious safety and health violations include allowing employees to use stairs that lacked standard rails, using platforms that lacked standard rails; allowing a portable fire extinguisher to be blocked by materials; allowing employees to work on a floor that was cracked and uneven; using light switch receptacles that lacked cover plates; not having machine guards on equipment; not guarding sprockets and chains on conveyors; exposing employees to noise hazards; and failing to develop lockout/tagout procedures to prevent unexpected startups of the machinery when workers serviced equipment. Additionally, a 2-inch diameter shaft on a piece of equipment projected 6 inches and was not guarded by nonrotating caps or safety sleeves. 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.

Four other-than-serious violations include not recording a 2010 injury in the required OSHA log; having a poorly maintained, dirty bathroom with trash on the floor; not posting a copy of the noise standard in the workplace; and not conducting a noise monitoring program for those employees exposed to noise exceeding 85 decibels. Another-than-serious violation is one that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm.

Penalties for the citations total $121,400. 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 OSHA “comes 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 or 334-501-1540.