Search This Blog

Friday, March 23, 2012

Supreme Court Restricts FMLA Application to States

Alabama@ Work
By Tommy Eden, Attorney

Daniel Coleman was employed by the Maryland Court of Appeals as executive director of procurement and contract administration. He was forced to resign or be terminated the day after he requested sick leave. Not surprisingly, Coleman sued the Maryland Court of Appeals for firing him for requesting sick leave.

In its federal court filing the State of Maryland moved to dismiss Coleman's complaint on the grounds that it was barred by the doctrine of sovereign immunity under the Eleventh Amendment. The State argued that Congress did not enact the Family and Medical Leave Act (FMLA) self-care provision of the FMLA to remedy a pattern of gender-based discrimination in the state's sick leave policies. Rather, the self-care provision was passed pursuant to the Commerce Clause. The Commerce Clause under constitutional law cannot be used to pierce the states' sovereign immunity. Look for this argument to surface in the ObamaCare case which will be argued for three days next week before the Supreme Court.

On March 20, 2012, the Supreme Court sided with the State of Maryland and held that Congress exceeded its authority in subjecting the States to private lawsuits under the “self-care provision” of the FMLA.

The high Court held that although it is well established that Congress enacted the “family care provisions” of the FMLA pursuant to its Fourteenth Amendment mandate to ensure equal protection of all citizens, FMLA's self-care provision was not tied to an identified pattern of sex-based discrimination on the part of the states and, thus does not permit suits against the states by their employees. Coleman v. Maryland Court of Appeal, In 2003, the Supreme Court held that Congress, pursuant to its Fourteenth Amendment powers, properly abrogated the States' sovereign immunity with regard to the family-care provision of the FMLA. Nevada Department of Human Resources v. Hibbs.

IMPACT OF THIS DECISION: The Decision Applies Only To Public Employers. The Supreme Court has insulated States and their political subdivisions (cities, counties, public boards, etc) from suits by employees alleging violations of the “self-care provision” of the Act. The FMLA’s “family-care provision” of the FMLA still applies because of the 2003 Nevada Department of Human Resources v. Hibbs decision. Still left open is whether states can be sued by employees for violations of the newborn or adopted-child care provision of the FMLA.

Common Sense Counsel: This decision mandates new FMLA and Non-FMLA leave policies by all agencies of the State of Alabama. Private employers should update their policies to include non-FMLA leave as an ADA reasonable accommodation. Also, the Department of Labor FMLA forms now have a new February 2012 release date.

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 or

Tuesday, March 20, 2012

DOT Regulation Update

By Tommy Eden, Attorney

Summary of Federal Motor Carrier Safety Administration (FMCSA) Final Rule published in Federal Register on January 18, 2012 (effective February 18, 2012) Harmonizing Schedule I Drug Requirements:

1) Amends the physical qualifications for drivers and the instructions for the medical examination report to clarify that drivers may not use Schedule I drugs (Schedule I controlled substances have a high potential for abuse and have no currently accepted medical use in the United States) and be qualified to drive commercial motor vehicles (CMVs) under any circumstances;

2) Harmonizes FMCSA’s provisions regarding pre- employment and return-to-duty test refusals with corresponding Department of Transportation (DOT)-wide provisions; and

3) Corrects inaccurate uses of the term “actual knowledge.” The sections affected are as follows:

Section 382.213 Schedule I Drugs Prohibited
Prior to this final rule, the text of § 382.213 prohibited CMV drivers from using any drugs when on duty or reporting for duty except when prescribed by a licensed medical practitioner who has advised the driver that the prescribed substance will not adversely affect the driver’s ability to operate a CMV. In this final rule, the Agency amends the language regarding the drugs that CMV drivers are prohibited from using in order to differentiate between Schedule I drugs and non-Schedule I drugs. The changes make it clear that Schedule I drugs may not be used by a CMV driver under any circumstances. FMCSA’s regulations continue to permit the use of non-Schedule I drugs under limited circumstances, when prescribed by a licensed medical practitioner. Accordingly, § 391.41 Physical qualifications for drivers now reads as follows:

(12)(i) Does not use any drug or substance identified in 21 CFR 1308.11 Schedule I, an amphetamine, a narcotic, or other habit-forming drug.
(ii) Does not use any non-Schedule I drug or substance that is identified in the other Schedules in 21 part 1308 except when the use is prescribed by a licensed medical practitioner, as defined in § 382.107, who is familiar with the driver’s medical history and has advised the driver that the substance will not adversely affect the driver’s ability to safely operate a commercial motor vehicle.

In light of the above regulatory changes the California Department of Motor Vehicles has updated their Medical Evaluation Report DL 51 Form as of February 2012. The FMCSA has likewise modified its Medical Examination Report for Commercial Drivers Fitness Determination Form.

Section 382.211 Pre-Employment Refusals

Prior to this final rule, § 382.211 only prohibited drivers from refusing to submit to a post-accident, random, reasonable suspicion, or follow-up drug or alcohol test. This rule amends this section to include refusals for pre-employment testing and return-to-duty testing as additional prohibitions. This amendment makes the regulation consistent with DOT-wide drug and alcohol testing rules at 49 CFR 40.191(a)(3).

Sections 382.201 and 382.215 Actual Knowledge Clarified
The replaces the term “actual knowledge” with the word “knowledge” in the context of regulations addressing employers’ knowledge of positive test results in these sections, clarifying that these prohibitions refer to the knowledge of test results, not employer observation of prohibited conduct.

U.S. Department of Transportation
Federal Motor Carrier Safety Administration
Harmonizing Schedule I Drug Requirements link to Final Rule

Update Provided by Tommy Eden who 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. He serves on the Board of Directors for the East Alabama SHRM Chapter and assist employers nationwide with DOT and non-DOT drug free workplace polices, training and counsel. He can be contacted at or 334-501-1540 or

This update is for educational purposes only and does not constitute legal advice. "No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers."

Sunday, March 18, 2012

Pregnancy Discrimination Cost Medical Staffing $148,000

By Tommy Eden, Attorney

Roxy Leger, the bookkeeper for HCS Medical Staffing, Inc. in Milwaukee, Wisconsin became pregnant. On hearing the news the owner of the Company referred to Leger's pregnancy as an “April Fools joke” and insisted that maternity leave should last no more than a couple of days. He later suggested that Leger's pre-natal appointments were a ruse for additional time off and then gave her an offensive graphic diagram of a machine which would allegedly allow her to have the baby by “Centrifugal Force” and thus return from her maternity leave sooner. Leger thought it all creepy.

Roxy Leger had her baby boy by Caesarean section. With no prior warning or discipline, HCS terminated Leger's employment and health insurance while she was still in the hospital recovering. Leger learned of her termination days later by certified mail which she believed was a gift card. Leger became depressed and failed to bond properly with her new born son.

An EEOC Charge for pregnancy discrimination was filed, and was followed by a suit in the U.S. District Court. The suit charged that the owner of HCS discriminated against Leger in violation of federal law, when he made offensive comments about her pregnancy and fired her because she needed to take maternity leave following the birth of her son. Pregnancy discrimination violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act.

After HCS failed to file a timely answer, the Judge entered a default judgment against the Company on Feb. 17, 2012. He ordered HCS to pay Roxy Leger back pay plus pre-judgment interest in the sum of $48,340; compensatory damages in the sum of $50,000; and punitive damages amounting to $50,000; totaling $148,340. In addition to the monetary relief, the judge ordered that HCS be permanently enjoined from engaging in any further pregnancy discrimination.

Judge J.P. Stadtmueller found that the “circumstances leading up to HCS's discriminatory termination of Leger were inherently humiliating and caused Leger substantial emotional distress. The circumstances surrounding Leger's notification of termination were equally degrading.”

Common Sense Counsel: The conduct described in this case was deplorable and started as a series of bad jokes. These are “hair on fire” managers because everyone around them sees how outrageous their conduct is, but no one speaks up. How to prevent the fire from burning up your business: 1) adopt a legally compliant non-discrimination policy and train every employee – especially senior management; 2) speak up in your workplace when you witness discrimination; 3) seek wise counsel and know when to settle rather than face the costly pen of a Federal Judge.

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 .

Friday, March 9, 2012

Discipline Done Right Wins 11th Circuit Case

By: Tommy Eden, Attorney

Kasib Jarvis, an African-American, was fired by Siemens Medical Solutions USA, Inc., (“Siemens”) and filed his lawsuit alleging employment discrimination based on race and retaliation under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Jarvis worked as a “network consultant” for Siemens and his duties essentially consisted of assisting customers in implementing Siemens’ medical equipment. The U.S. District Court Judge in Georgia granted summary judgment in favor of Siemens and Jarvis appealed.

On April 7, 2008, Jarvis’ supervisor sent an email that his performance did not meet expectations and deficiencies included: consistently missing deadlines and failing to meet various work-related objectives, such as assisting in the development of new services and communicating with customers. On June 2, 2008, Jarvis was officially placed on a performance improvement plan (PIP) which listed specific objectives that Jarvis needed to achieve, including the completion of design specifications for the “Customer Satisfaction Survey” and the “Project Tracking Tool” by June 30, 2008 and stated that a failure to meet the outlined requirements could lead to termination.

Sometime towards the end June 2008, Jarvis complained of racial discrimination to a staff employee in the human resources department.

When it became clear to Jarvis in October 2008 that he might wish to seek other opportunities, he falsified a time record for a 2 day interview and told his supervisor during a phone call he was at his home office when he was obviously in traffic. On October 14, 2008, the supervisor sent a termination letter to Jarvis which provided essentially three reasons for Jarvis’ discharge: (1) unsatisfactory performance, (2) insubordination, and (3) falsification of a timecard.

The 11th Circuit on March 8, 2012 affirmed summary judgment upholding the well documented actions by the Siemens’ supervisor. It recited settled law that “If the employer proffers more than one legitimate, nondiscriminatory reason, the plaintiff must rebut (prove unworthy of credence) each of the reasons to survive a motion for summary judgment.” Jarvis also sought to prove that a comparator was treated differently to which the Count responded, “To establish that a comparator was similarly situated, the plaintiff must show that the quantity and quality of the comparator’s misconduct was nearly identical to his own.” View Court Opinion

Common Sense Counsel: Siemens did 5 things right to win this discrimination case: 1) had a progressive discipline handbook policy; 2) documented deficiencies in clear and object language and used an email trail to prove receipt; 3) used a PIP to show fair opportunity to improve; 4) written discipline prior to discrimination complaint; and 5) included all reasons in termination document.

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 or

NLRB Posting Rule Upheld, but Decision on Appeal

On March 2, a federal district court in Washington, D.C., upheld a rule requiring employers to post a notice informing employees of their rights under federal labor law. However, the court rejected the rule's enforcement scheme, under which the National Labor Relations Board would treat a failure to post the notice as an unfair labor practice and would allow extra time for filing other ULP charges against employers if they have failed to satisfy the notice requirement. Employers subject to the NLRB's jurisdiction are supposed to post the notice—“Employee Rights Under the National Labor Relations Act”—by April 30. Groups opposing the rule have already appealed the district court's decision and filed a motion that would put the rule on hold pending resolution of their appeal. Stay tuned for a last minute injunction.

Monday, March 5, 2012

Ready Mix Pays $400,000 to Settle Noose Case

Alabama@ Work
By Tommy Eden, Attorney

Ready Mix USA, a major cement and concrete products company in Montgomery, Alabama, will pay $400,000 and furnish other relief to settle a lawsuit for racial harassment filed by the Birmingham District Office of the U.S. Equal Employment Opportunity Commission (EEOC).

The EEOC charged in its lawsuit filed in 2009 that a class of African American males at Ready Mix’s Montgomery-area facilities was subjected to a racially hostile work environment. The EEOC alleged that a noose was displayed in the worksite, that derogatory racial language, including references to the Ku Klux Klan, was used by a direct supervisor and manager and that race-based name calling occurred. Ready Mix denied that racial harassment occurred at its worksites. (EEOC v. Ready Mix USA). Racial discrimination and harassment violate Title VII of the Civil Rights Act of 1964.

The consent decree settling the suit announced on February 21, 2012, provides that Ready Mix will pay a total of $400,000 in compensatory damages to be apportioned among the seven class members. The two-year decree enjoins Ready Mix from engaging in further racial harassment or retaliation and requires that the company conduct EEO training. Ready Mix will be required to modify its policies to ensure that racial harassment is prohibited and a system for investigation of complaints is in place. The company must also report certain complaints of harassment or retaliation to the EEOC for monitoring.

Common Sense Counsel: To avoid this kind of expensive public embarrassment, employers must understand that it is all about creating a respectful workplace environment. In Fiscal Year 2011, the EEOC received 35,395 charges alleging race-based discrimination and 8776 of those alleged race-based harassment. Historically, race-based charges account for more than 35% of all charge filings nationwide. A noose is a threatening symbol of cruelty that has no place in any American workplace.

First, it begins first with a commitment from top management to not allow certain types of unacceptable conduct to creep into the workplace. I call it the Barney Fife school of human resource management where you have to "nip it in the bud." That is especially true with workplace off-color or sexually laced jokes, pictures or cartoons. Second, a legally defensible equal employment opportunity statement in the employee handbook is absolutely critical. Third, make sure that every employee in your organization is trained on the policy and have signed their name at the bottom of the policy. Fourth, once a complaint comes in made sure that it is investigated within 24 to 48 hours and prompt corrective and remedial action is taken and documented.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, PC, 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

Grill Pays Server $200,000 to Settle Customer Harassment

Tommy Eden, Attorney

The owner/operator of a Hurricane Grill and Wings restaurant franchise in Royal Palm Beach, FL, agreed this week to pay $200,000 to settle a class sexual harassment lawsuit filed in the U.S. District Court for the Southern District of Florida. The suit alleged that the restaurant permitted female servers to be sexually harassed by a customer, a Palm Beach County sheriff’s deputy. Later, the company fired a female server after management learned she had hired a private attorney to assist her in filing an EEOC complaint.

Sexual harassment by a customer, and retaliation for complaining about it, may violate Title VII of the Civil Rights Act of 1964.

The suit alleged that the female servers were frequently grabbed on their breasts and buttocks and humiliated by sexual innuendo, as well as direct invitations to join the harasser and his wife in ménage a trois. The litigation apparently got so hot, that while the case was pending, the prior owner sold its interest in the Royal Palm Beach location to another franchisee. As successors in interest, the new Hurricane Wings management agreed to be a party to the suit for purposes of complying with future relief.

As part of the consent decree, Hurricane Wings management agreed to amend and redistribute its sexual harassment policy; offer training to all employees, including management; post a notice regarding its continued effort to ensure that the Royal Palm Beach location is free of sexual harassment and its intent not to retaliate further; monitoring and reporting to the EEOC; and a written request for the offending patron to stay away from the facility.

Common Sense Counsel: Employees should feel safe at work and employers must protect their employees from a sexually hostile work environment. Title VII requires an employer to prevent known sexual harassment created by other employees, vendors or customers. Hurricane Grill and Wings had a responsibility to protect their employees regardless of the status of the harasser. A high percentage of sexual harassment charges are filed by women in the restaurant industry and this case serves as fair notice that there are protections for the rights of this particularly vulnerable segment of the work force.

For Alabama employers there is no substitute for a well drafted written policy against harassment of all typs, distribution of the policy with a signed employee acknowledgment, awareness training on the policy and a procedure to investigate and resolve complaints. And do not allow a harassment situation involving a customer or vendor directed at your employee to continue. Employers have an obligation to protect employees from sexual predators; including those wearing a uniform.

Tommy Eden is a Lee County native, an attorney with the local office of Capell & Howard, 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