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Friday, June 22, 2012

SunTrust Bank Manager Accused of Sexual Harassment

By: Tommy Eden, Attorney
Alabama@Work

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 tme@chlaw.com, 334-501-1540 or www.AlabamaAtWork.com. Alabama Immigration updates at www.ImmigrationAlabamaLaw.com.

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 tme@chlaw.com or 334-501-1540 or www.AlabamaAtWork.com. Alabama Immigration updates at www.ImmigrationAlabamaLaw.com.

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

Alabama@Work

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 tme@chlaw.com or 334-501-1540 or www.AlabamaAtWork.com. Alabama Immigration updates at www.ImmigrationAlabamaLaw.com.