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Friday, September 14, 2012

Medical Marijuana Backers Seek Inroads in South

The home state of the president who didn't inhale has become an unlikely front in the battle over medical marijuana.

This fall, Arkansas will be the first Southern state to ask voters whether to legalize medical uses for pot, a move that offers supporters a rare chance to make inroads in a region that has resisted easing any restrictions on the drug.

The state's top elected officials and law enforcement agencies oppose the idea, but legalization groups hope the referendum shows that medical marijuana is no longer solely the domain of East Coast or Western states.

"This is an issue that hasn't been ready for primetime yet in the South. It may be that it's starting to be, and that's a good thing," said Jill Harris, managing director of Drug Policy Action, the political arm of the Drug Policy Alliance.

The South and Midwest have remained mostly on the sidelines in the nation's marijuana-reform movement, which will also put proposals for full-scale legalization before voters this year in Colorado, Oregon and Washington state.

So far, 17 states and the District of Columbia have legalized medical marijuana in some form. Massachusetts voters are expected to vote on it in November, and another measure could appear on North Dakota's ballot.

Past efforts to put medical marijuana on the ballot in Arkansas have faltered, though voters in two cities in the state have approved referendums that encourage police to regard arrests for small amounts of marijuana as a low priority.

Supporters of the current proposal mounted an organized and well-funded campaign that surprised many political observers. Arkansans for Compassionate Care, the group advocating for the measure, won ballot access after submitting far more than the required 62,500 signatures.

Medical marijuana has never come before voters in the South partly because of the difficulty of getting such initiatives on the ballot. And conservative legislators throughout the region have not backed the efforts. That's why the Washington-based Marijuana Policy Project spent more than $246,000 on the Arkansas initiative and is expected to spend more.

The national group stepped in after polling showed strong support for the measure in Arkansas. Group leaders also cite a "symbolic" value in passing medical marijuana in the South.

"For some reason, public officials have been way behind public opinion on this issue," said Morgan Fox, communications manager for the agency. "Politicians are starting to realize that they don't have to worry about backlash."

Backlash over marijuana is nothing new for Arkansas public figures. The state's most famous political son, former President Bill Clinton, was ridiculed during his 1992 campaign for admitting that he used marijuana in college but insisting he didn't inhale.

And Joycelyn Elders, the Arkansas doctor who was named by Clinton to be surgeon general, drew criticism in office for suggesting that drug legalization should be studied. Elders, who is now an outspoken advocate of marijuana legalization, said she believes the Arkansas effort could pass with a strong education campaign.
"If we educate the people in Arkansas, we can do the right thing," Elders said.

Lacking any big-name supporters and facing opposition from some of the state's top elected officials, Arkansans for Compassionate Care is turning to patients in its campaign.

Kathy Reynolds said she used marijuana in 1992 to help her eat after undergoing breast cancer treatment and bone marrow transplants. Now 57, she says she would like to use it again to dull the pain from a degenerative bone disease. But she's worried about being arrested.

"I'm afraid to," Reynolds said. "The risk it would be to use it at this point outweighs the benefit."
If approved, the Arkansas proposal would allow patients with certain qualifying conditions to use marijuana with a doctor's recommendation. Qualifying conditions would include cancer, glaucoma, HIV, AIDS and Alzheimer's disease.

Nonprofit dispensaries would be allowed to sell pot. But if patients live more than five miles from a dispensary, they or their caregivers could also grow marijuana.

The ballot measure's future isn't guaranteed, however. A coalition of conservative groups has asked the state Supreme Court to strike it from the ballot, claiming it misleads voters.

Even if it's approved, federal prosecutors could shut down any dispensaries, as they have in other states. Arkansas Attorney General Dustin McDaniel said the conflict with federal law is one of the reasons he opposes the measure.

Gov. Mike Beebe, another opponent, said aside from the federal legal questions, there are also worries about how much it will cost the state to regulate dispensaries.

"Those are serious questions, and a lot of that is unanswerable because you don't know how many dispensing places are going to apply or going to be granted," Beebe said.

Even some of the state's medical marijuana supporters are somewhat wary of the proposal.
State Sen. Randy Laverty, who said he generally supports medical marijuana, said he's undecided and wants to review the proposal to make sure any dispensary system is tightly controlled.

"I don't know if Arkansas is ready for medicinal marijuana or not," Laverty said. "But if they are, I doubt they would want open dispensaries on the corners in various towns."

Friday, July 27, 2012

Lessons Learned from the Penn State Scandal

By: Tommy Eden Attorney, Capell & Howard, P.C.

The Penn State child molestation scandal should be a wake-up call for every organization that provides organized activities for children. If there is one thing that our society will not forgive, it is the institutional failure to protect children. Children 18 and under are considered minors in the State of Alabama.

Those in leadership positions should ask themselves, “have we done all we can to protect the children under our care from sexual abuse?” The following seven questions are a good risk reduction audit:

 1. Are we acting like our organization is immune to child sexual abuse? No organization is immune, not the church, not a prestigious university and not a youth sports program. Complacency is the greatest ally of the pedophile.

2. Have we considered what would happen if a child is abused in our care? You need look no further than the latest headlines and trial testimony, to see the lasting emotional scars sexual abuse leaves not only with the children, but on the organization. For years to come people will drive by pointing out, “there is the place that the children were abused.” That stigma can last for decades.

3. Do we understand the benefits of having a program to prevent child sexual abuse? A preventative program begins with a legally defensible written policy and education on Alabama’s mandatory and permissive child abuse reporting requirements when child abuse is suspected. The most successful way to protect both children and to protect workers from false allegations is the two adult rule (an that is two unrelated adults). In my church law practice, I cannot recall a single verified incident of child sexual abuse when the two adult rule was followed. The second most important rule is the use of view windows and open doors.

 4. How should we screen our workers? The first step to worker screening is the use of a written application where they also consent to background checks. Then the level of background checks depends on whether the worker is paid or volunteer. Many organizations will require workers to obtain a criminal background check from the local sheriff and utilize the free DHR background check service. The highest level of background check should be conducted on paid staff as that is typically where 99% of these claims arise.

 5. How should we supervise our youth workers? Hallway monitors, camera surveillance, unexpected drop-in and a variety of other ways can be utilized to supervise youth workers. That also includes spend the night parties and other off-campus activities. The same vigilance should be followed.

 6. How should we identify and report incidents of child sexual abuse? The level of reporting will many times depend on whether they are mandatory or permissive reports to DHR under Alabama law. The organization's policies should identify to whom reports are made, who will speak for the organization and have available forms and checklists. Building a paper trail of compliance for the organization is extremely important to prove that it acted timely and appropriately.

7. How should we respond to incidents of sexual abuse? Timely and completely. Never cover-up child sexual abuse! It can be a crime as much as the abuse itself and a multitude of additional lives can be ruined if a timely report is not made.

Tommy Eden is an attorney with Capell & Howard, P.C. and has presented on Child Protection Programs to numerous organizations throughout the south. He can be contacted at, 334-501-1540 or Alabama Immigration updates at

Friday, July 20, 2012

Sovereign Immunity Trumps FLSA

By: Tommy Eden

Natalie Versiglio was employed as an administrative assistant for the Board of Dental Examiners of Alabama. During the majority of her employment she was paid an hourly wage, but during the last few months of her employment she was paid a salary for each week of work. However, Natalie was not paid for overtime, mostly related to attendance at Board meetings, but rather was told she was being compensated in "comp time." She accumulated a significant amount of "comp time,” but when Natalie's employment ended with the Board in 2009 she was not compensated for this accumulated "comp time" of over $10,000.

Natalie then sued in federal court in Birmingham alleging violations of the Fair Labor Standards Act (FLSA) seeking unpaid wages, overtime, liquidated damages, together with a reasonable attorney fee and costs. The FLSA mandates that covered employers pay nonexempt employees overtime for all hours worked in excess of 40 hours in each work week. The FLSA does not contain language authorizing the payment of overtime in the form of "comp time" other than in limited situations involving firefighters and some other public employees.

In response, the Board filed a Motion to Dismiss claiming sovereign immunity from suits under the FLSA based upon the 11th Amendment to the Constitution of the United States. Federal District Judge Acker denied the Motion to Dismiss citing 37 different boards or agencies created by the Alabama Legislature that would fall within the same category as the Board of Dental Examiners. His Order was appealed to the 11th Circuit Court of Appeals which initially ruled that there was not sufficient evidence to find that the Board enjoyed the State of Alabama's sovereign immunity.

Subsequently, the Alabama Supreme Court, on May 25, 2012, issued a decision in Wilkinson v. Bd. of Dental Exam'rs of Ala, holding that "that the Board is 'an arm of the state' rather than a mere 'franchisee licensed for some beneficial purpose,' and therefore entitled to immunity from suits in Alabama state courts.”

On July 13th, granting deference to the Alabama Supreme Court decision, the 11th Circuit held in Natalie Versiglio v. Board of Dental Examiners of Alabama, that “it is well-settled that 11th Amendment immunity bars suits brought in federal court when the State itself is sued and when an 'arm of the State' is sued," and ruled that the Board enjoyed sovereign immunity from suit.

Common Sense Counsel: This is a significant decision to all of the boards and agencies created by the Alabama Legislature. This case is also a valuable lesson for all employers that jurisdictional grounds involving federal statutes can trump federal claims.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, P.C., 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 or Alabama Immigration updates at

Friday, July 13, 2012

Employers Face Various PPACA Deadlines

By: Tommy Eden


The June 28th U.S. Supreme Court's decision upholding key provisions of the Patient Protection and Affordable Care Act (PPACA), nicknamed “ObamaCare” should serve as a wake-up call to those employers that have taken no action to comply with the Act's requirements. The ruling impacts employers, health care providers, tax professionals, insurance companies and individual taxpayers.

The PPACA will have a profound impact on employer-sponsored group health plans, particularly the employer shared responsibility requirement and W-2 reporting. Beginning in 2014, employers with at least 50 full-time employees must make available affordable coverage to their workers or face exposure to tax penalties. Also, for the first time, fully insured plans will be subject to nondiscrimination requirements. The law also affects waiting periods and for larger plans, mandates automatic enrollment.

Below is a summary of the major deadlines for employer-sponsored group health plans: 

Patient Protection and Affordable Care Act Deadlines
2012 Form W-2
Include, for informational purposes, the cost of employer-sponsored health insurance coverage. If no exception applies under interim guidance, employers should begin or continue putting procedures in place to track, calculate, and provide the information required.
Medical Loss Ratio Rebates
Aug. 1, 2012
Procedures in place to handle any rebates received from the insurer in accordance with the rules for distribution, including the rules requiring ERISA plans to determine the extent to which rebates are plan assets. Rebates need to be apportioned if premiums are paid with both employer and employee contributions.
Preventive Health Services  for
Aug. 1, 2012
Non-grandfathered group health plans provide recommended preventive health services without cost-sharing and adjust services covered in accordance with changes to recommended preventive services guidelines.
Summary of Benefits & Coverage
Sept. 23, 2012
Self-insured plans and insurance issuers (or the insured plans to which they provide coverage) supply a summary of benefits and coverage (SBC) explanation to participants and beneficiaries in addition to summary plan description. Plans need to be sure that compliance procedures are in place sufficiently in advance of the open enrollment deadline.
Quality of Care Reporting
After guidance
is issued
After agencies develop reporting requirements for non-grandfathered plans to disclose information regarding plan or coverage benefits and health care provider reimbursement structures, plans make the annual report available to enrollees during each open enrollment period. If agency guidance is issued soon, plans might need to report during their fall 2012 open enrollment period for 2013.
Nondiscrimination Rules
After guidance
is issued
Expect agency guidance regarding the prohibition against non-grandfathered insured plans discriminating in favor of highly compensated individuals. Plans will have to comply for “plan years beginning a specified period after issuance” of the guidance.
Annual Limits
Dec. 31, 2012
Plans that choose to extend waivers of restricted annual limits, resubmit application information by this date.
Flexible Spending Arrangements
Jan. 1, 2013
Cafeteria plans must be amended to provide that employees may elect no more than $2,500 (adjusted for inflation for 2013) in salary reduction contributions to a health FSA.
Retiree Prescription Drug
Jan. 1, 2013
Employers cannot take a deduction for the subsidized portion of expenses.
Jan. 1, 2013
Systems must be modified to provide for increase in HI portion of FICA by 0.9% for employees with wages in excess of $200,000 ($250,000 for a joint return).
Notice of Exchange Option
March 1, 2013
In accord with agency guidance to be issued, employers will have to provide notice to employees of the existence of state exchanges and options and implications of obtaining health care through an exchange.
Comparative Clinical Effectiveness Research Fees
July 31, 2013
First temporary fees imposed on self-insured health plan sponsors (tax code Section 4376) and insurers for insured plans (Section 4375) paid by this date (pursuant to proposed regulations).
Plan Communications With Providers
Dec. 31, 2013
By this date, plans must certify and document compliance with HHS rules for electronic transactions between providers and health plans.
Employer Shared Responsibility Excise Tax
Employers with 50 or more full-time employees must provide health insurance that meets affordability and value requirements or pay a penalty of the lesser of $2,000 per employee (minus 30 employees) or $3,000 per exchange-certified employee. Employers should make a cost/benefit analysis of their current plan and possible alternatives, but no meaningful decisions should be made until IRS and HHS issue guidance containing definitions, calculations, and safe harbors.
High-Cost Health (“Cadillac”) Plans
Sponsors will have to pay an excise tax calculated on the excess value of coverage.
Other Requirements

Employers must comply with other health plan-related requirements for which implementing guidance has not yet been issued: (1) notices regarding whether the health coverage offered qualifies as minimum essential coverage; (2) automatic enrollment required for employers with more than 200 full-time employees; (3) restricted annual limits on essential health benefits do not apply beginning in 2014; (4) cafeteria plans of employers with 100 or fewer employees may offer coverage of full-time employees through an exchange; (5) pre-existing condition exclusions for adult enrollees and other discrimination based on health status not permitted; (6) wellness program restrictions not permitted; (7) waiting periods greater than 90 days not permitted.

Common Sense Counsel: See full chart which includes a detailed description of each issue and administration considerations to help employers, tax practitioners and their clients at Then brace your employer for change.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, P.C., 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 updates can be found at

Friday, July 6, 2012

Wage Hour investigations finds multiple violations in Alabama

By: Tommy Eden

In Montgomery, Alabama, the U.S. Department of Labor's Wage and Hour Division (DOL) found violations of the Fair Labor Standards Act's overtime, minimum wage and record-keeping provisions at the Raceway 700 gas station on Mobile Highway. Jaymahesh LLC, doing business as Raceway 700, has agreed to pay six cashiers $13,618 in back wages plus an equal amount in liquidated damages totaling $27,236.

An investigation found that the Raceway 700 had made a verbal agreement with nonexempt hourly employees that violated the FLSA because it did not require the payment of overtime wages when the employees worked more than 40 hours per week. They had also made deductions during some workweeks from employees' pay to make up for register shortages, which caused employees’ pay to fall below the federally mandated minimum wage of $7.25 per hour. In addition, the employer failed to maintain accurate records of employees' hourly rates and wages paid.

In Winfield, Alabama, the DOL recovered $62,836 in back wages and benefits for 31 truck drivers employed by Winfield-based R.L. Box Inc. following an investigation that found violations of the prevailing wage rate and fringe benefit requirements of the McNamara-O’Hara Service Contract Act as well as the record-keeping provisions of the Fair Labor Standards Act. The Act requires that contractors and subcontractors performing services on covered federal contracts in excess of $2,500 must pay their service workers no less than the wages and fringe benefits prevailing in the locality, or rates contained in a preceding contractor’s collective bargaining agreement.

In lieu of providing the actual fringe benefits, R.L. Box had wrongly elected to pay for those benefits as part of employees’ hourly rates. Investigators also determined that R.L. Box had failed to count all hours worked and pay the required prevailing wage rate, because most drivers were not paid for pre-trip inspections of their vehicles or the training time required to learn mail routes. Holiday pay was not properly provided to drivers until they had worked with the contractor for at least a year, the health and welfare rate was not paid on holiday hours for part-time or intermittent workers and vacation pay was not provided to part-time or intermittent workers.

Common Sense Counsel: Wage Hour compliance is one of the most difficult and costly problems for employers. Have your Wage Hour Audit done on these issues before a government compliance investigator knocks:

• classification of exempt, nonexempt, and independent contract workers;

• commissions, bonuses, incentive payments, and other compensation programs;

• federal contractor compliance;

• overtime pay calculations;

• family and medical leave; and

• recordkeeping requirements.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, P.C., 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 or Alabama Immigration updates at

Friday, June 22, 2012

SunTrust Bank Manager Accused of Sexual Harassment

By: Tommy Eden, Attorney

On June 14, 2012, suit was filed in federal district court in Florida alleging that SunTrust Banks, Inc. subjected three female employees to a sexually hostile work environment while they were employed at SunTrust’s Gulf Gate Branch in Sarasota, Florida. SunTrust is one of the nation’s largest providers of financial services, with approximately 28,000 employees nationwide and operates more than 1,665 branches.

The allegations stem from complaints made by three female employees against the branch manager, the highest on-site manager who supervised all branch employees and oversaw branch business and operations. Over a period of two years, these three female employees claim this branch manager subjected them, on an almost daily basis, to the following: 1) unwelcome lewd comments of a crude and sexual nature; 2) staring at certain parts of their bodies; 3) comments about breast implants; 4) lewd comments about their legs; 5) inquiries about their private sex lives; 6) comments about how he “loved Brazilian” women in a sexual tone; and 7) a request to wear a bathing suit to attract new customers. Further, the women complained of the Bank Manager’s nonconsensual physical touching of a sexual nature and offensive comments about Hooter’s waitresses who were also bank customers.

All three female employees claim they rejected and objected to the Branch Manager’s unwelcome sexually laced conduct and comments. The women also claim they made complaints to SunTrust’s Area Manager and to the HR Department, but the sexually hostile work environment continued. All three women then filed charges of sex discrimination with the EEOC. After conducting its investigation, the EEOC decided to file its own lawsuit against SunTrust on behalf of these three women. In that lawsuit, it is alleged that SunTrust took no action to stop the harassment or prevent it from reoccurring and that SunTrust’s conduct violates Title VII of the Civil Rights Act of 1964.

The lawsuit seeks: 1) a permanent injunction enjoining SunTrust Bank from subjecting its female employees to unwelcome, sexually graphic and vulgar sexual harassment; 2) an order that SunTrust establish anti-harassment policies, practices, and programs; and 3) to make whole these female employees through a monetary award.

Common Sense Counsel: The alleged conduct of the Branch Manager, if true, was rude, crude and unacceptable in any workplace. Sexual harassment claims represent the highest monetary risk for employers and prevention should be at the top of every employer’s Human Resource to do list. Prevention requires having a legally compliant anti-harassment policy, annual company wide employee training, hot lines for remote branches, prompt and effective investigation of complaints and taking proper remedial actions.

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

Monday, June 18, 2012

Pharmaceutical Sales reps Not Entitled to Overtime

In a widely anticipated ruling, the US Supreme Court decided in a 5-to-4 vote that pharmaceutical sales reps are not entitled to overtime pay.

 The Court ruled that if an employee’s primary duty is to obtain orders or contracts and regularly does so away from the employer’s place of business, that the “end goal was not merely to make physicians aware of the medically appropriate uses of a particular drug. Rather, it was to convince physicians actually to prescribe the drug in appropriate cases. Christopher v. SmithKline Beecham Corp. ” See Case

Form W-2 Reporting of Employer-Sponsored Health Coverage

Form W-2 Reporting of Employer-Sponsored Health Coverage (According to the IRS)

 The Affordable Care Act requires employers to report the cost of coverage under an employer-sponsored group health plan. Reporting the cost of health care coverage on the Form W-2 does not mean that the coverage is taxable. The value of the employer’s excludable contribution to health coverage continues to be excludable from an employee's income, and it is not taxable.

This reporting is for informational purposes only and will provide employees useful and comparable consumer information on the cost of their health care coverage. Employers that provide "applicable employer-sponsored coverage" under a group health plan are subject to the reporting requirement. This includes businesses, tax-exempt organizations, and federal, state and local government entities (except with respect to plans maintained primarily for members of the military and their families). However, federally recognized Indian tribal governments are not subject to this requirement. Transition Relief For certain employers, types of coverage, and situations, there is transition relief from the requirement to report the value of coverage on the 2012 Forms W-2 (the forms for calendar year 2012 that employers generally are required to provide employees in January 2013). This relief will apply to future calendar years until the IRS publishes additional guidance. However, any guidance that expands the reporting requirements will apply only to calendar years that start at least six months after the guidance is issued. See the “Optional Reporting” column in the below chart for the employers, types of coverage, and situations eligible for the transition relief.

Reporting on the Form W-2 The value of the health care coverage will be reported in Box 12 of the Form W-2, with Code DD to identify the amount. There is no reporting on the Form W-3 of the total of these amounts for all the employer’s employees. In general, the amount reported should include both the portion paid by the employer and the portion paid by the employee.

See the chart, below, and the questions and answers for more information. An employer is not required to issue a Form W-2 solely to report the value of the health care coverage for retirees or other employees or former employees to whom the employer would not otherwise provide a Form W-2. The chart below illustrates the types of coverage that employers must report on the Form W-2. Certain items are listed as "optional" based on transition relief provided by Notice 2012-9 (restating and clarifying Notice 2011-28). Future guidance may revise reporting requirements but will not be applicable until the tax year beginning at least six months after the date of issuance of such guidance. The chart reviews the reporting requirements for Box 12, Code DD, and has no impact on requirements to report these items elsewhere. For example, while contributions to Health Savings Arrangements (HSA) are not to be reported in Box 12, Code DD, certain HSA contributions are reported in Box 12, Code W (see General Instructions for Forms W-2 and W-3). Form W-2 Reporting of Employer-Sponsored Health Coverage Chart

Related Information: IR-2011-31, IRS Issues Interim Guidance on Informational Reporting of Employer-Sponsored Health Coverage Notice 2010-69, Interim Relief with Respect to Form W-2 Reporting of the Cost of Coverage of Group Health Insurance Under § 6051(a)(14)
 IRS YouTube Video, W-2
Webinar, Health Insurance ReportingReporting of Employer Healthcare Coverage on Form W-2.

Friday, June 15, 2012

Bananas Show Racial Intolerance Says 11th Circuit

By: Tommy Eden, Attorney

Reginald Jones worked as a driver for United Parcel Service (UPS) out of its Trussville, Alabama terminal where he claims he was subjected to a racially hostile work environment. As examples Jones testified: 1) workers repeatedly placed banana peels on his truck and not on Caucasian drivers’ trucks; 2) working around employees wearing confederate shirts; 3) racial comments made by his trainer referring to him as an Indian and “I trained your kind before”; 4) being threatened late at night in the truck yard by Caucasian employees carrying a tire tool after he complained about the wearing of confederate shirts; and 5) his complaints to management not being taken seriously. Jones finally quit and filed an EEOC Race Charge and later sued in Federal Court in Birmingham.

In vacating summary judgment granted to UPS by the District Judge, the 11th Circuit Court of Appeals on June 11th set forth the prima facie standard for racially hostile work environment employer liability. An employer is liable if the employee proves that: (1) he belongs to a protected group; (2) he was subjected to unwelcome harassment; (3) the harassment was based on his membership in the protected group; (4) it was severe or pervasive enough to alter the terms and conditions of employment and create a hostile or abusive working environment; and (5) the employer is responsible for that environment under a theory of either vicarious or direct liability.

The Court noted that the use of the term monkey, and the connection to bananas, have been part of actionable racial harassment claims across the country. In seizing on the undisputed “banana” facts, the 11th Circuit held, “This combination of facts suggests the bananas were not appearing on Mr. Jones’s truck by mere chance. When viewed in its totality, this evidence would allow a rational trier of fact to conclude that someone was placing the bananas on Mr. Jones’s truck to send a message of racial intolerance.” The Court found there were both subjective and objective components in support of Jones’ claim that his race-based harassment was so severe or pervasive as to alter his conditions of employment.

Common Sense Counsel: Be careful what you let your employees wear and eat at work. Allowing comments, symbols (banana peel & confederate shirts) or conduct based on race can create an intimidating, hostile or offensive work environment and place an employer at risk of an EEOC Charge or costly litigation. Having a legally compliant anti-harassment policy, annual company wide employee training, prompt and effective investigation of complaints and taking proper remedial actions are keys to good risk reduction.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, P.C., 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 or Alabama Immigration updates at

Saturday, June 2, 2012

UAW tries to organize Nissan plant in Mississippi

June 1, 2012, 7:47 p.m. CDT AP JACKSON, Miss. (AP) — The United Auto Workers may be stepping up efforts to organize workers at Nissan Motor Co.'s auto plant in Mississippi. Democratic U.S. Rep. Bennie Thompson, of Bolton, is among those scheduled to speak Sunday at a news conference in Canton, home of the 3,300-worker assembly plant.

The event is meant to support workers seeking an election to organize a union. The UAW has tried unsuccessfully in the past to unionize workers at Nissan's plant in Smyrna, Tenn., and at other foreign-owned auto plants in the South. However, Nissan spokesman Dave Reuter said Friday that no union election has been held at the Canton plant since it opened in 2003. Full Story

For Common Sense Counsel (with Korean translation) on how to prepare for such organizational efforts click here.

Friday, June 1, 2012

Alabama’s Recent Unemployment Compensation Changes Explained

By Tommy Eden, Attorney


Waiting Period Changed. Beginning May 8, 2012 an individual must serve a one-week waiting period with no benefits payable during the first compensable week within a benefit year.

Substantial Penalties for a False Statement. A claimant who willfully makes a false statement or representation or who willfully fails to disclose a material fact to obtain or increase any benefit or payment is guilty of a Class B felony if the amount involved in the offense exceeds $2,500; a Class C felony if the amount involved is between $500 and $2,500; and a Class A misdemeanor if the amount involved is $500 or less. In lieu of fines, any individual found guilty will be required to pay restitution to the Department in at least the amount of benefits fraudulently obtained.

Additional Lengthy Disqualifications. In addition, a claimant who makes a fraudulent misrepresentation in order to obtain benefits to which he or she is not entitled is also subject to a disqualification for the 52-week period immediately following the date of the fraud determination. The disqualification will continue until the fraud overpayment has been repaid in cash. Subsequent fraudulent acts will subject the claimant to a disqualification of 104 weeks.

Overpayment Recovery. Federal and state income intercepts used to satisfy overpayments are considered cash payments. New language also provides that fraudulent overpayment balances will accumulate interest at 2% per month on unpaid balances, and will be added to the debt balance and deposited in the fraud penalty account. The law also provides that fraudulent overpayment balances are subject to an additional minimum penalty of 15%. The penalty will be deposited into the Unemployment Insurance Trust Fund.

Common Sense Counsel: The cost of lying to the State of Alabama about entitlement to Unemployment Compensation just got a lot more expensive.
Top 5 Ways Alabama Businesses Can Protect Their Experience Rating:
1) Answer every request for separation information within six work days from the mailing date of the request;
2) In your answer provide specific details concerning the final incident that resulted in the separation, explaining rules or policies violated, listing dates, reasons for prior warnings and attaching all written warnings;
3) Notify the Department in writing at the time you discharge an employee for a dishonest or criminal act, sabotage, an act endangering the safety of others, use of illegal drugs, refusal to take a drug test, or altering a drug test;
4) Appeal determinations on claims believed to be incorrect within 15 calendar days from the mailing date of the notice; and
5) Fully participate in the Department’s New Hire Program to prevent fraudulent filings.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, P.C., 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 or Alabama Immigration updates at

Friday, May 18, 2012

Qualified Deaf Applicant Wins ADA Case Against Temp Service

By Tommy Eden, Attorney

Service Temps of Dallas, Texas refused to hire Jacquelyn Moncada for a stock clerk position, despite her qualifications and experience, upon learning that Moncada was deaf. Through a sign language interpreter, Moncada attempted to explain to the company that she was fully capable of performing the job and that she had several years of stock clerk experience. The company refused to conduct an interview or consider Moncada for the position. A Service Temps manager explicitly told Moncada that she would not be hired because she could not hear.

The Americans with Disabilities Act (ADA) prohibits disability discrimination and requires employers to make reasonable accommodations for employees’ and applicants’ disabilities as long as this does not pose an undue hardship.

On Sept. 22, 2010, a Dallas jury of three women and seven men in the case of EEOC v. Service Temps, Inc. d/b/a Smith Personnel Solutions returned a verdict against the employer, finding that the company violated the ADA by refusing to hire Moncada because of her disability. The jury awarded Moncada money damages for lost wages and emotional harm and an additional amount in punitive damages totaling $103,200, plus interest. The district court also granted the EEOC’s motion for an injunction, ordering that Smith Personnel be prohibited from discriminating against persons who are disabled, regarded as disabled, or having a record of a disability. Smith Personnel subsequently appealed the decision to the U.S. Court of Appeals for the Fifth Circuit.

On April 26, 2012, the Fifth Circuit Court of Appeals issued a ruling rejecting all of Smith Personnel’s arguments on appeal and affirming the monetary award. The Fifth Circuit further noted that the EEOC had presented evidence at trial demonstrating that Smith Personnel’s manager, who had hiring authority, was employed in a managerial capacity and acted within the scope of his employment when he did not allow Moncada to apply for a job, even if that act purportedly violated company policy.

Common Sense Counsel: ADAA claims of “Regarded as Disabled” can affect every employer with 15 or more employees. Making sure you are training managers who have hiring authority on the Dos and Don’t of their ADA obligations interview would have been good counsel for this employer. Supervisory ADA Training, New Interview Procedures, New Interactive Accommodation Steps, Handbook Updates, and Job Descriptions listing Essential Functions (i.e. being able to hear and respond to warning and instructions in a warehouse environment) are strongly encouraged for both temporary service employers as well as all Alabama employers. Otherwise expect the EEOC’s deaf ear to your Statement of Position.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, P.C., 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 or Alabama Immigration updates at

Friday, April 27, 2012

Text Messaging Ban While Driving Good Business

By Tommy Eden, Attorney

Text messaging while driving on public roads and highways in Alabama could be banned under a plan that won final legislative approval on Thursday, April 26, 2012. House Bill 2 now sits on the Governor Robert Bentley’s desk. The bill bans anyone from operating a vehicle on a public road or highway while manually using a cell phone or other wireless device to communicate by text message, instant message or email.

The ban would not apply to:
1) a driver obtaining emergency services from police, firefighters or health care providers,
2) a driver getting directions from navigation or global positioning systems, and
3) a driver in a motor vehicle parked on the shoulder of a road or highway.

The Acts effective date will be July 1 or August 1 depending on the date the Governor signs it.

Drivers who are caught sending or writing text messages while driving will be subject to a $25 fine upon conviction. A second offense would bring a $50 fine, with all subsequent convictions carrying $75 fines. In all cases, the guilty driver convicted would also be responsible for paying any court costs. The bill has no language regarding jail time or probation attached to conviction, but does include a provision attaching a point to a driver's Alabama license in the event of conviction. As a driver your license can be pulled if you accumulate 12 points. Thirty-seven states already ban text messaging for all drivers, as has the federal government for all its employees and DOT regulated truck drivers.

Common Sense Counsel: with this latest action by the legislature, 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 covering driver qualifications, what is a disqualifying driving record, use of safety belts, what to do in the case of an accident and finally a wireless communication device policy like this:

Wireless Communications Devices Use
Employees cannot use wireless communications device to text message, instant message or email when driving on Company business. Drivers who need to use a wireless communications device to do such purpose must pull over to a safe location and stop before using the device. An employee found in violation of this policy is subject to discipline, up to and including discharge.

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 and you are the one accused of negligence.

Tommy Eden is a Lee County Native, an attorney with the local office of Capell & Howard, P.C., 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 or Alabama Immigration updates at

Friday, April 20, 2012

How Essential is Showing up for Work

By Tommy Eden, Attorney

Monika Samper, a neo-natal intensive care unit (“NICU”) nurse with 11 years of service, sought an accommodation from her employer, Providence St. Vincent in Portland, Oregon, that would have allowed her an unspecified number of unplanned absences from her job. Samper had fibromyalgia, a condition that limited her sleep and caused her chronic pain. She wanted to opt out of Providence’s attendance policy, which sanctioned five unplanned absences (during a rolling 12 month period) of unlimited duration as well as other permitted absences.

After a negative performance review for excessive absenteeism Samper was placed on a work improvement plan. Her manager asked to meet with her and a leave-of-absence specialist to address Samper’s chronic attendance problems. At the meeting, Providence agreed to a highly flexible accommodation: Samper was allowed to call in when having a bad day, and move her shift to another day in the week. Providence’s flexibility, however, yielded no results.

Samper again met with management in which it agreed to yet another accommodation in that her two shifts-per-week would not be scheduled on consecutive days. Again, despite hoped for improvement, Samper received a verbal warning at the end of the year because of her attendance. Samper responded by seeking the above described exemption from the attendance policy altogether. Providence then informed Samper that her part-time position would cease to exist and that she could transfer to another position or face termination. Samper responded by making inappropriate comments in the presence of patients and was issued a corrective memorandum and later fired for excessive absenteeism.

According to the testimony of the NICU charge nurse, absences among NICU staff can potentially jeopardize patient care.

The matter eventually ended up before the 9th Circuit Court of Appeals which held on April 11, 2012 that while Sample was disabled under the ADA, because regular attendance is an essential function of the NICU nurse position, she could prove one of the essential elements of her case. The court said in Samper v. Providence St. Vincent Med. Ctr., “allowing the nurse's absences would compromise performance quality in a way that could be fatal to patients in the neo-natal intensive care unit where she worked.” Accordingly, her absenteeism firing did not violate the ADA.

Common Sense Counsel: Providence Hospital did the following things right that allowed it to win this ADA reasonable accommodation case: 1) job description listed regular and predicable attendance as an essential job function; 2) used written disciplinary warnings; 3) scheduled interactive reasonable accommodation meetings, and 4) showed patience during which time the employee acted inappropriately in front of patients.

Tommy Eden is a Lee County Native, an attorney with the local office of Capell & Howard, P.C., 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 or Alabama Immigration updates at

Friday, April 13, 2012

Mandatory Retirement Policy Costly

By Tommy Eden, Attorney

Attorney Eugene T. D’Ablemont, with the New York law firm of Kelley, Drye & Warren, continued to practice law full-time at the firm after turning 70 in 2000. The law firm has over 300 attorneys and represents clients in high-stakes class action cases. It had a policy that attorneys who wanted to practice after reaching 70 could only do so by giving up all ownership interest in the firm and instead be compensated through discretionary bonuses. This resulted in significant under-compensation for D’Ablemont.

In a case of great significance to the legal community, the firm, after being sued in Federal District Court for the Southern District of New York for violating the Age Discrimination in Employment Act (ADEA), agreed in a consent decree to end its policy of requiring partners to give up their equity in the firm once they reach 70. D’Ablemont, who continues to practice at the firm, will be paid $574,000.

The three year consent decree entered by the Federal Magistrate on April 3rd requires the following by the law firm: 1) amended Partnership Agreement to eliminate the provision that required that a partner relinquish their equity interest in the firm at age 70; 2) permanently enjoined from involuntary termination, expulsion, retirement or reduction of the compensation because of age; 3) provide each partner with a copy of the decree and post it in its offices; 4) provide two hours of EEO training with videotaped and attendance records; 5) D’Ablemont, now over age 80, is to continue to receive compensation for legal work performed; 6) maintain records of all written or oral complaints of alleging age discrimination and to make a written report to the EEOC; and 7) the court retains jurisdiction to enforce provisions of the consent decree.

Common Sense Counsel: there is no reason why attorneys, or anyone else, who is capable of continuing to work at 70 should be forced to retire from their chosen profession just because of their age, unless there are reasonable factors other than age. On March 29th the EEOC released its Final Rule on "Reasonable Factors Other than Age" Under the ADEA. The final rule clarifies that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, unless the employer can show that the policy or practice is based on a reasonable factor other than age. The rule applies to private employers with 20 or more employees, state and local government employers, employment agencies, and labor organizations. Know the rules before you make a costly policy.

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 or Alabama Immigration updates at