Search This Blog

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