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Friday, February 17, 2012

Romance in the Workplace More Open

Tommy Eden, Attorney

A February 9th survey from CareerBuilder finds that 38 percent of employees have dated a co-worker at least once, and 31 percent of workplace romances have made it all the way to the altar. The survey of 7,780 U.S. employees found that 28 percent of amorous employees dated someone at a higher rung on the corporate ladder, and 18 percent dated their bosses. The most romantic industries, the survey found, are hospitality (47 percent of employees have dated a co-worker), financial services (45 percent), transportation and utilities (43 percent), information technology (40 percent), and health care (38 percent).

How Many Dated the Boss? While the majority of relationships developed between workers in comparable job levels, 25 percent of workers who dated a co-worker said they have dated someone above them in the company hierarchy, and 13 percent admitted to dating their boss.

How Much Does Your Job Factor into Your Love Life? One-in-four workers (25 percent) reported that what someone does for a living influences whether they would date that person. Five percent of workers said someone broke up with them because their job required too many hours at the office, they didn't make enough money or the person didn't like their line of work.

Where Do Office Romances Begin? Social settings outside of the office were cited most often in regard to workers connecting on a romantic level. Running into each other outside of work (15 percent), happy hours (14 percent), late nights at work (9 percent) and at lunch or a company holiday party (7 percent) were among the most popular catalysts for dating co-workers.

Are Relationships Better Kept Secret? Most workers who have had office romances said they were open about their dating situation, while 30 percent reported they had to keep the relationship under wraps.

Common Sense Counsel: For the employee, whether you are dating someone higher-up or a colleague at the same level, office romances are always tricky. It is important to know your company's dating policy and critical that you stay professional and draw a boundary line between your personal life and the workplace. For employers, include in your Conflict of Interest Policy that supervisors must disclose if they are in a relationship in the workplace and prohibit anyone from working under the supervision of someone in which they are in a relationship, and by all means have a legally compliant harassment prevention policy and training. A bad office romance can turn into a nightmare harassment case. The best advice on office romance came from one of my law school professors ”don’t get your honey where you get your money.”

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

Sunday, February 12, 2012

Pharmaceutical Company Pays $99 Million to Settle Wage Misclassification Case

By: Tommy Eden, Attorney

On January 25, 2012, a federal district court in New York granted preliminary approval to a $99 million proposed settlement of a nationwide wage and hour Fair Labor Standards Act (FLSA) class action against Novartis Pharmaceuticals Corp., with a class of more than 7,000 current and former sales employees. (In re Novartis Wage & Hour Litigation) The case arises from a pair of 2006 lawsuits filed under the FLSA and California and New York laws. Class notices are being mailed out and a fairness hearing is set for May 31st in New York. This has been one of the most highly watched FLSA cases for the last five years by the pharmaceutical industry.

The proposed settlement agreement covers five subclasses of Novartis sales representatives who allege they were denied overtime pay in violation of the FLSA and state laws. In companion case, the U.S. Supreme Court has on its April argument calendar the case of Christopher v. Smith-KlineBeecham Corp. (Case No. 11-204 set for oral Argument on Monday April 16). The Smith-KlineBeecham case raising the issue of whether the FLSA's outside sales exemption exempts pharmaceutical sales representatives from overtime pay under federal law. The Department of Labor (DOL) has intervened in the case and argued its interpretation of wage and hour law that the sales representatives have been misclassified and are due overtime compensation.

Novartis claims that it has recently made significant changes to the job responsibilities for its pharmaceutical sales representatives so that they fall within the FLSA “administrative exemption” as their primary duty includes "the exercise of discretion and independent judgment with respect to matters of significance."

Common Sense Counsel: it may be time for an Employment Law Compliance Audit. This development is the latest challenge that employers face. With the DOL’s resources employers can expect to face additional pressure from the government and class-action attorneys. Wage and hour compliance is one of the most difficult problems for employers and a well drafted job description is the key to not being an easy target. As employers try to stay competitive, employees may have a wider range of responsibilities causing the line between exempt and nonexempt employee classifications to blur.

Alabama employers should review these areas in their job descriptions, policies and procedures before a government compliance officer, or FLSA federal court lawsuit, arrives at the door:
• classification of exempt, nonexempt, time clock rounding and independent contract workers;
• commissions, bonuses, incentive payments, and other compensation programs;
• overtime pay calculations;
• family and medical leave; and
• recordkeeping requirements.
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.

Thursday, February 2, 2012

Requiring Employee Disclosure of Legally Prescribed Medications Risky

By Tommy Eden, Attorney

Product Fabricators located in Pine City, Minnesota fired long-time employee Dennis Anderson because he was taking a low-dosage, legally prescribed narcotic medication for back pain. Product Fabricators is a contract manufacturer providing sheet metal fabrication and powder coating services.

All employees were required by Company policy to report their legal use of prescription drugs – and even over-the-counter medication. As one might imagine, the EEOC contended that Anderson’s firing was taken because Product Fabricators perceived Anderson as being disabled solely because he was taking the medication, and failed to consider his ability to perform the job before firing him. Additionally, it contented that such medical use inquiries were illegal under the Americans with Disabilities Act (ADA) without showing business necessity.

Suit was filed in the U.S. District Court in Minnesota asserting that this blanket disclosure policy was a violation of the ADA because it was not related to the ability of Product Fabricators employees to do their jobs, and was therefore unlawful because employees complying with the policy were likely to unwillingly disclose information about any disabilities or impairments they may have. The suit also charged that requiring all employees to report their legal use of prescription drugs – and even over-the-counter medication – amounts to an unreasonable invasion of privacy, whether an employee is disabled or not.

The case was eventually settled with Dennis Anderson receiving $40,000 and Product Fabricators and the EEOC entering into a 3 year monitored consent decree enjoining the company from continuing its policy requiring disclosure of prescription drug use. However, the District Court Judge refused to allow the case to remain on his docket for 3 years and dismissed the case. The EEOC took him on next.

In reversing the District Judge’s decision, the Eighth Circuit embraced the principle that “[c]ontinuing jurisdiction is the norm (and often the motivation) for consent decrees.” Once the EEOC has reached a settlement with an employer accused of discrimination, continuing jurisdiction provisions enable the EEOC to ensure that defendants will comply with civil rights laws for years to come.

To show lessons not learned, Product Fabricators fired employee Adam Breaux 2 years later after he inquired about taking time off to have shoulder surgery. He was allegedly fired because he inquired about taking time off for shoulder surgery and for participating in an interview with an investigator from the EEOC.

Common Sense Counsel: Employer action steps to stay off the EEOC radar: 1) updated drug testing policy; 2) updated job descriptions with essential functions; 3) ADAA handbook policy language; 4) supervisor training on ADAA responsibilities; and 5) understanding the interactive ADA dance steps.

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. Past articles can be found at