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Saturday, December 28, 2013

National Championship Prediction 2014:

1972 Auburn (10-1) The Amazins
2014 Auburn (13-1) Get on the Gus Bus

By Tommy Eden

The Tigers wound up No. 5 in the AP, beating four Top 25 teams, including Florida State. The only loss came in Week 5 at LSU 35-7. While the signature win was the "Punt, Bama, Punt" upset that denied unbeaten Alabama a shot at the national title. Sounds familiar? That year we beat Florida State and this is the program we bought. A Phil Neel Classic! That year the Tigers went on to whip Florida State. Sounds familiar too, doesn't it? On that Monday I remember seeing several of the players in my classes with bruises from a brutal game. 1972 and 2014 have both been years filled with wonder and many surprises such as "Prayer in Jordan Hare" and "Kick6" What a season of blessings for all Auburn Fans! War Eagle!

Thursday, December 26, 2013

Want to be a Great Boss in 2014?

By Tommy Eden

Make these Top 5 Resolutions for 2014, stick to them, and your employees will  call you a Great Boss by year end:

Double Feedback. Even if you are not good at giving feedback, employees want to hear what you are thinking. The most important feedback you can give is specific and sincere. Learn the magic words to use when giving an employee evaluation;

Lead Strategically. Write down your 2014 mission, goals and  priorities. Confidence, autonomy, purpose and growth are intrinsic employee motivators driving the internal engines of those around you. Setting 2014 goals and priorities, and then getting out of your employees way, will make you a strategic leader and not a micro-manager;

Systems Check. Do a critical examination of all the systems in your organization. Learn how to sniff out employment claims and litigation landmines before they blow your organization apart. Handbook updates, wage and hour audits, dealing with workplace bullies,  and ObamaCare compliance are some of my top 10 system checks for 2014;

Learn Something New. Do not expect your people to keep on learning if you don't show a commitment to learning as well. For instance, when managers apologize they gain respect by holding themselves accountable. Using your influence and knowledge to help others succeed is what great bosses do. Good coaches know how to ask the right questions to help people discover their own path to answers. These might sound like new and scary concepts to some, but that is what great bosses do. They learn and grow.

Improve Emotional Intelligence.  It helps you manage yourself so you can lead others. Are you a micro manager, not strategically minded, procrastinating, unorganized, show disrespect, always reacting and not planning ahead, etc. Improve your weaknesses and listen more in 2014 if you want to be a great boss.

Common Sense Counsel to get there:

First, go public with your resolutions.  Think about the people who care most about your growth and the success of the team, and post for all to see.

Second, ask a few people to help you. This can range from observing you and letting you know what they see to actively coaching you.  Why is that important? There is something called coach’s bias. Once I'm invested in someone's growth, or in the success of an employer organization, I begin seeing things more quickly than others. Feedback is the secret sauce you need as you work on your five resolutions.

Third, put your team through a SWOT review. Schedule a free thinking breakfast time complete with a large post-it chart. SWOT is taught in all MBA programs and is what great organizations regularly perform. Learn your organization’s Strengths, Weaknesses, Opportunities & Threats. You will be amazed what you will have on the wall when the last donut is gone!

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA 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 334-246-2901. Blog

Friday, December 6, 2013

ACA Small Business Survival Guidance

By Tommy Eden

The Obama administration on Wednesday November 27 delayed online enrollment until November 2014 for small businesses using the Affordable Care Act's (ACA) federal marketplace. HEW officials had already pushed back acceptance of online applications in the Small Business Health Options Program, or SHOP, since the Oct. 1 launch of

With this latest hiccup in the rollout of the ACA the problems for small business in Alabama mount to include:
•    Small Employers (2-50 employees) are squeezed out of traditional group health insurance policies by ACA coverage mandates;
•    Rising small group premium cost and unaffordable employee annual deductions and co-pays;
•    SHOP exchange for small business delayed until November 2014;
•    Public Exchange absolute disaster requiring an applicant to share highly confidential information to be placed into a US Government database;
•    Small employer and individual policies canceled by the thousands nationwide; and
•    Small employers need to offer some type of Insurance Benefit since it has always attracted and kept the best employees.

Common Sense Counsel: So what is a small Alabama employer to do? While the Obama Administration has wrung it hands the Private Insurance Exchanges are up and running. How a  Private Insurance Exchanges works:
•    Traditional health insurers across the nation have entered into State by State Private Exchange agreements with the federal government Department of HHS;
•    Offers ACA compliant insurance policies on a Private Exchange with traditional telephone and insurance agent guidance and private information is not shared with the government;
•    Private Exchanges have their own expanded network of physicians and health providers;
•    Much like traditional group health insurance policies except they are individual and family health insurance policies;
•    Typically purchased through a defined contribution plan established by employer which allows for deductions by employers of major medical insurance reimbursements but for 2014 will be included in the income of employees while other benefits such as supplemental insurance and HSA employer deposits are both deductible by the employer and tax free to the employee;
•    Private Exchange may be endorsed by an employer Association, Chamber or Commerce or other large membership organization which markets the Private Insurance Exchange to its members;
•    Internet portal with telephone support established for endorsing Association where the policy choices are made by employees of the member employer;
•    Typically multiple carriers and also multiple types of policies and options are available;
•    Employee selects options that best fit their life needs such as health insurance, HSA Account, FSA Account, supplemental insurance, etc.

Who you gonna call? If this development interest you it is critical that you contact your employer Association or Chamber of Commerce and ask if they endorse a Private Insurance Exchange option for their members. If the answer is no, ask that they establish one.

For more information see webinar link on my blog.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA 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 334-246-2901. Blog at

Tuesday, November 26, 2013

Objectionable Sniffing Causes Suit

 By Tommy Eden

Tonia Royal was hired by CCC&R apartment complex as a leasing manager on Monday, August 3, 2009. She was fired on Thursday, August 6, by her female supervisor. Royal worked at the only desk in a small front office.

According to Royal, two male maintenance workers would enter her office, hover over her and sniff her as she sat at her desk. This occurred about twelve time, for each worker, over the four days of Royal’s brief employment. Sometimes they would come alone, and sometimes they would come together. Royal told them several times that she did not like their behavior. The men would sometimes sniff and hover directly over Royal’s head when she was seated. Sometimes the men would sniff even when Royal exited the bathroom.
On another occasion, one of the maintenance workers was sitting on a cabinet behind Royal with his legs open, he was an arm’s length away and wearing shorts. She alleged that he was visibly aroused. For three to five minutes, Royal reports that he engaged in a “stare-down.”
Royal reported her complaint to the Assistant Manager who told her to “let it slide” and stated something along the lines of “you know what men are like when they get out of prison.”
The following day there was a staff meeting where Royal spoke up and said that she did not like for the men to sniff over her all the time. In response, one of the maintenance men claimed he had a medical condition. The other maintenance man stated that he “needed to get a release.” After the staff meeting, there was another follow-up meeting with management in which Royal again asked about the maintenance men’s conduct.
That same afternoon, the Assistant Manager called Royal into her office and discharged her giving no reason. CCC&R later asserted that Royal was fired for “swatting a fly harder than was necessary and slamming a door.”
Royal filed an Equal Employment Opportunity Commission Charge then timely sued CCC&R in Federal Court in Texas. She claimed sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964 as well as violations of various Texas state laws.
Royal lost at the District Court then appealed to the Fifth Circuit Court of Appeals. The Court of Appeals reversed the decision, holding  “There was a genuine dispute of material fact whether the maintenance men’s behavior violated Title VII. The Assistant Manager was on notice of the sniffing, the hovering and the “I need a release" comment. The sniffing and hovering over a woman, by two men, in a small, confined space could be viewed by a reasonable jury as harassment based on Royal’s sex. Indeed, it is difficult to imagine the maintenance men sniffing and hovering over Royal if she were a man.”

The case is Royal v. CCC&R decided 11/21/2013.

Common Sense Counsel: This case should be a wake-up call for all employers to not “let slide” this type of rude and crude conduct. Having a legally compliant Professional Conduct Policy and Prohibition Against Harassment Policy, annual employee-wide training, prompt and effective investigation of complaints and taking proper remedial actions are keys to good risk reduction.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA 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 334-246-2901. Blog at

Friday, November 22, 2013

Obamacare Webinar

Obamacare Scorecard

By Tommy Eden

This last week the Department of  Health and Human Services (HHS) released its most detailed reports to date showing the results of the first period of open enrollment in the Health Insurance Marketplace. As of November 13, 2013, Obamacare scored a total of only 106,185 individuals enrolled through the exchange while more than 4.8 million Americans received notices that their preexisting plans will be cancelled. So far, the scorecard doesn’t look very good for Obamacare and the number of cancellations notices continue to skyrocket. 

Common Sense Counsel:
What action should every small employer (under 50 employees) take now?
Consider these 3 Steps:

Step 1: “Strategically” decide to “Go or Stay Small”
·                    Applicable Large Employers who have 50 FTEs must offer health coverage to all full-time employees or face pay or play fines.
·                    Must correctly identify the "employer group" to correctly apply the rules (i.e., "who is the Employer" - IRS control group rules apply)
·                    Go small by:
ü      contracting out distinct business functions (SWOT analyses)
ü      use Staffing Service
ü      breakup controlled group (within IRS Attribution Rules)
ü      reduce size of workforce
ü      sell your business
ü      sell parts of your business
ü      use part-time and variable hourly employees (still may be Applicable Larger Employer but no fines)
ü      solicit wise counsel so what you do will truly make a difference

Step 2: Update your employee handbook
·                    Full-time for ObamaCare mandate is 30 hours a week
·                    Coverage not mandated for part-time, temporary, seasonal and variable hourly employees so must include in handbook new classification information and new hire packets.
·                    Carefully review staffing employee arrangements to determine impact
·                    Confirm that independent contractors are really IC's and not EE's as       improper classification can lead to big financial problems
·                    Legally crafted benefit disclaimer language in handbook and benefit plans is critical to allow quick pivots on benefit related issues
·                    Move benefits to separate explanation of benefits booklet and out of handbook as much is still undecided.

Step 3: Consider top 5 healthcare plan design choices for groups under 50
·                    Keep everything “as is”. Cover issues like “grandfather rules” and notices that still apply in Obamacare.
·                    Purchase group insurance through the SHOP (small Business Health Options Program) exchange to qualify for the IRS tax credit
·                    Change to a self insured group plan to avoid taxes (can go down to 10 participants)
·                    Terminate group plan but replace with a defined contribution plan amount for health expenses so employees qualify for Federal subsidies allowing employees to purchase custom-fit policies through the new private exchanges or Federal exchange (Best choice for most small employers)
·                    Terminate group plan and either keep the money or give a pay raise.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA 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 334-246-2901. Blog at Information for the article also contributed by Alan Chappell of Chappell Consulting.

Saturday, November 16, 2013

BullyGate Already Costly

 By Tommy Eden

 The Miami Dolphins suspended left tackle Richie Incognito after it was claimed he had bullied teammate and left guard Jonathan Martin so severely that Martin left the team. Some reports state that the Dolphin coaches asked Incognito “to toughen up Martin.”

The alleged bullying included threats and racial slurs, malicious physical attacks by teammates and daily vulgar comments including crude comments about Martin’s sister. In one text message of a voice message left by Incognito to Martin he used racially charged language and said to Martin "I'll kill you." Incognito has acknowledged leaving the message but said he is not racist.

Team owner Stephens Ross in an interview before the Monday night Dolphins Buccaneers NFL game said he was appalled by the language in the voice mail and anyone would be appalled. He plans to meet face to face with Martin shortly.

To highlight the cost to the Miami Dolphins’ team morale cause by BullyGate, the Dolphins went on to lose to the Tampa Bay Buccaneers 22-19 on Monday night football. While the Miami Dolphins players promised to come out strengthened by their trials they came out flat giving the Buccaneers their first win of the season.

Former Dolphins Coach Don Shula and a host of former Dolphins all-stars have been assembled by Ross to investigate along with a NFL League investigator. The news media daily continues to dribble out leaks and leads under its hot media magnifying glass. All the while the plaintiffs bar appears to be circling the beached Dolphin brand.

Common Sense Counsel: Can workplace Bulling be costly. You decide. While bullying alone is not discrimination under federal or Alabama law, when combined with protected status (Martin is black), or intentionally directed towards an employee who has engaged in protected conduct, it can be a dangerous courtroom combination. Bullying can be verbal, physical and non-verbal. Below are abbreviated descriptions:

•       Verbal Bullying: using browbeating language or behavior, slandering, ridiculing or maligning a person or his/her family; spreading rumors or gossip regarding individuals; offensive name calling or nicknaming;
•        Physical Bullying: pushing; shoving; kicking; poking; tripping; assault, or threat of ...;
§       Non-verbal Bullying: non-verbal threatening gestures, looks or actions that convey threatening messages; purposefully singling out, ignoring, excluding ...

This media spectacle is a teachable moment and  should cause every employer in Alabama to take the following actions:
1.      update their Professional Conduct and Prohibition Against Harassment Policy to include anti-bullying language with an open door invitation prohibiting retaliation;
2.      train on the updated policy by bringing your policy to life with hypotheticals;
3.      nip it in the bud when you witness bullying and do not expect employees to work it out between themselves;
4.      promptly investigate when reported with a legally defensible paper trail;
5.      then take documented corrective and remedial action; and
6.      think about the potential detrimental economic, morale and legal effects of not maintaining a respectful workplace environment that is not all about respect.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP 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 334-246-2901. HR Blog at

Thursday, November 7, 2013

Employer Consistency Defeats Pregnancy Bias Claim

By Tommy Eden

Anamaria Penaloza worked at a Target store in Florida when she became pregnant and took an FMLA leave of absence to deliver her child. However she did not return within the 12 week FMLA leave period and Target cut her hours, disciplined her for absences and late arrivals and fired her for failing to come to work after a 14-week absence. The Eleventh Circuit Court of Appeals sided with Target and last week unanimously decided that Penaloza needed to show that Target treated workers outside her class of pregnant woman more favorably to survive Target’s motion for summary judgment.

The Pregnancy Discrimination Act amended Title VII by provides that the prohibition against sex discrimination includes discrimination based on pregnancy, childbirth, or related medical conditions. To prevail a plaintiff must establish a prima facie case by showing that (1) she belongs to a protected class; (2) she was qualified to do the job; (3) she was subjected to an adverse employment action; and (4) her employer treated similarly situated employees outside her class more favorably.

Here, there is no dispute as to the first three elements. Ms. Penaloza was qualified for her job, was in a protected class (pregnant women), and suffered a number of adverse employment actions: (1) reduction in hours; (2) disciplinary action for alleged absences and late arrivals; and (3) termination for failing to return to work after a 14-week absence.

The dispute in this case turned on the fourth element: whether Target treated similarly situated, non-pregnant employees more favorably. The Court found that Ms. Penaloza had presented no evidence to satisfy this element. In particular, she has presented no evidence that (1) the number of hours assigned to any of her coworkers remained the same when her hours were reduced; (2) other employees whom Target accused of failing to call in absent before an unscheduled absence were treated differently than she; and (3) any other Target employee failed to return to work after a 14- week absence but retained a position at Target. The Court simply found that she did not show Target treated non-pregnant workers any differently and failed to show that “any other Target employee failed to return to work after a 14-week absence but retained a position at Target.” The case is Anamaria Penaloza v. Target Corp.

Common Sense Counsel: This Pregnancy discrimination case had a happy ending for Target. If faced with this situation I highly recommend you go back and read my June 9, 2013 Column Bullet-Proofing your Employee Discharge Decision. It is one of my top Blog hits and is all about following a Consistent Discharge Process.
Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA 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 334-246-2901. Blog

Thursday, October 24, 2013

Time to Seriously Consider Dispute Resolution Program

By: Tommy Eden

Three Technicians working for DIRECTV each signed an arbitration agreement requiring that “all claims or controversies . . . past, present or future, arising out of an employee’s employment or termination be submitted to binding arbitration, including claims for wages or other compensation due . . . and claims for violation of any federal, state, or other governmental law, statute, regulation, or ordinance.”

In November 2011, the Technicians filed a demand for collective or class arbitration alleging that DIRECTV failed to pay them overtime wages in violation of the Fair Labor Standards Act (FLSA).

The Technicians sought to bring their case on behalf of themselves and all other similarly situated employees. The arbitrator agreed and issued an order finding their arbitration agreements provided for collective arbitration. Not liking the result, DIRECTV filed a petition in the district court seeking to vacate the arbitrator’s award and won. The District Court Judge ruled that the arbitrator had exceed her authority and was to hear the FLSA claims individually and not collectively.

Reversing the District Court Judge earlier this week, the 11th Circuit Court of Appeals found in favor of the Arbitrator’s authority to hear the collective action noting “the agreements were worded broadly, encompassing all past, present, and future claims or controversies relating to wages and compensation. According to the arbitrator, the plain language of the agreements explicitly allowed the Technicians to assert their rights on a collective basis.” The U.S. Supreme Court's ruling in Oxford Health Plans LLC v. Sutter early this year greatly expanded arbitration as a means of resolution of a broad range of employment disputes. The case is DIRECTV LLC v. John Arndt et al

Common Sense Counsel: Now is the time to consider the benefits of a well designed dispute resolution program. Such a program increases the prospects that concerns will be resolved before they ripen into actual EEOC Charges, DOL Investigations, Lawsuits, you name your worst employment nightmare. In light of the emerging case law favoring alternatives to court litigation, now is a good time to consider options for designing an employee dispute resolution program and the potential business advantages - not the least of which is not having to spend a sunny day locked in a windowless room with a plaintiff’s attorney with an attitude.

The best programs have the following:
1) an internal complaint process with a promise of no retaliation;
2) a toll free hot line for multiple location employers;
3) handbook provisions giving employee two channels to make their complaint and fair investigation process; 4) well drafted and broadly worded arbitration provision that will pass court scrutiny;
5) training for all employees on the process;
6) private arbitration panel of former local judges and mostly importantly;
7) a Human Resource professional with a listening ear and risk reduction mindset.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA 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 334-246-2901. Blog at

Thursday, October 17, 2013

Hiring the Secret Sauce Employee

By Tommy Eden

Adrian Hembree was a vice president of New York Pizzeria Inc., as well as a franchise owner, when his employment with the company was terminated. According to its website, New York Pizzeria has 32 restaurants in the United States and the Middle East.
New York Pizzeria eventually bought out Hembree’s franchise and took ownership of the restaurant.  However, it recently filed suit in Texas Federal Court alleging claims of trade secret misappropriation, violation of several Federal and Texas statutes by Hembree and a host of competitors; some who were prior New York Pizzeria franchisees. According to the Complaint, the defendants schemed to develop their own franchise operation that was a virtual copycat of New York Pizzeria Inc.’s successful model. Hembree had access to confidential, proprietary information, including recipes, plate specifications, supplier and ingredient lists, and training and restaurant operations manuals; all of which he had acknowledged in the franchise documents as trade secrets of New York Pizzeria.

The Complaint also claims that Hembree, without authority, accessed New York Pizzeria’s online portal with company issued usernames and passwords and “obtained New York Pizzeria’s special recipes and other proprietary information.” The case is New York Pizzeria Inc. v. Syal.

Common Sense Counsel:
Allegations of misappropriation of trade secrets or other intellectual property expose companies and individuals to serious criminal and civil liability. The employee of your competitor who brings the secret sauce recipe to your business can sometimes leave you nothing but a bad taste.
There are several actions a company can take to avoid being accused of Trade Secret violations and to protect their own secrets: 1) request information from new hires about any non-competes and confidentiality agreements; 2) protect your own secrets with use of him effective nondisclosure and confidentiality agreements; 3) when you have a protectable interest, consider use of non-compete and non-solicitation agreements as permitted by state laws; 4) inform employees that the company does not engage in or approve of any sort of trade secrets misappropriation; 4) limit the accessibility of confidential, proprietary and trade secret information to those employees who require such information in order to perform their jobs; 5) Prior to an employee’s departure from the company, collect company laptops, cell phones, flash drives and other devices, and check that electronic documents have been returned or deleted from any cloud-storage application; 6) remind departing employees in writing of previously signed agreements regarding confidential, proprietary and trade secret information; and 7) get a signed statement acknowledging that the departing employee has not retained or forwarded any document, writing, email, voicemail or text message containing confidential or proprietary information.
Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA 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 334-246-2901. Blog at

Thursday, October 10, 2013

Firing the Sacred Cow Employee

 By Tommy Eden

After working at A.B. Data for only four months, Michael Benes charged the firm with sex discrimination. As background, A.B. Data  is a consulting firm whose website takes credit for the direct mail campaigns in the 2008 and 2012 elections for Senator and then President Obama. The Employment Opportunity Commission (EEOC) arranged for mediation in which, after an initial joint session, the parties separated and a go-between relayed offers. In a separate-room mediation, each side (including attorneys and assistants) stays in its own room with the mediator shuffling between rooms.

But on receiving a settlement proposal that he thought too low, Benes stormed into the room occupied by his employer's representatives and said loudly: "You can take your proposal and shove it up your  a** and fire me and I'll see you in court." Benes stalked out, leaving the employer's representatives shaken. Within an hour, A.B. Data accepted Benes’ counterproposal and fired him for his misconduct during an EEOC sponsored mediation.

Benes replied by filing suit in Wisconsin Federal Court under 42 U.S.C. § 2000e-3(a), the anti-retaliation provision of Title VII of the Civil Rights Act of 1964. His claim of sex discrimination had been abandoned as part of the mediation. The Judge granted A.B. Data’s motion for summary judgment concluding that Benes had been fired for misconduct during the mediation, not from making a supporting charge of discrimination. The Judge stated that the EEOC statute only bans retaliation because an employee has opposed any practice made an unlawful employment practice or because they have made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.

Benes then appealed the lower court’s grant of summary judgment to the Seventh Circuit Court of Appeals. In affirming the lower court’s ruling dismissing the case the panel found that “We cannot see why misconduct during mediation should be consequence free…if it did nothing else, the incident demonstrated Benes's hotheaded inability or unwillingness to follow instructions about important matters.” The court determined that the law does not forbid all responses to the filing of discrimination charges with a government agency, only those that would dissuade a reasonable worker from making or supporting a charge of discrimination. The case is Benes v. A.B. Data Ltd.,

Common Sense Counsel: this case is a great example of how an employer can properly handle an out-of-control abusive or threatening employee who has previously engaged in protected activity, such as filing an EEOC charge or lawsuit. Take action now to update your handbook and train your staff to deal with the sacred cow employee (one who thinks they are bulletproof) by answering the following questions: 1) Can you prove that the employee had fair notice of the rules or standards of conduct or production standards? 2) Did you conduct a fair investigation before a decision was made? 3) Were you consistent in the manner in which discipline was administered? 4) Did you first utilize progressive discipline? 5) Have you developed an objective and respectfully worded paper document trail proving you followed each one of the above steps? See my July 2013 post "Bullet-Proofing your Employee Discharge Decision"“. This article goes into detail on each of the above questions.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP 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 334-246-2901. Employment Blog at

Saturday, October 5, 2013

Dreadlocks and Excessive Hairstyle Policy Cause Lawsuit

By Tommy Eden

Chastity Jones applied online for the position of a customer service representative with Mobile, Alabama based Catastrophe Management Solutions Inc. (CMS) and was among a group of applicants selected to participate in a face-to-face group interview. Jones, African American, participated in the interview with blonde hair dreaded into neat curls known as “curllocks.” Human resources staff conducted the interview and offered Jones the position.

However, later that same day while meeting with Jones to discuss her training schedule, a CMS manager realized that Jones’ curled hair was, in fact, in dreadlocks. The manager informed Jones that her hair violated the CMS grooming policy and that in order to obtain employment, she would have to cut off her dreads. Jones refused and the employment offer was rescinded.

CMS’s policy does not explicitly ban dreadlocks but stated as follows: "All personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines...hairstyle should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable...”
The CMS manager had interpreted the excessive hairstyle policy as a ban on all dreadlocks.

Jones then filed a Charge of Race Discrimination with the EEOC. The U.S. Equal Employment Opportunity Commission processed her charged and this week decided to file suit on her behalf in the U. S. District Court for the Southern District of Alabama, Selma Division claiming violations of Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 by implementing a policy that prohibited employees from wearing dreadlocks and enforcing that policy against Chastity Jones. The case is Equal Employment Opportunity Commission v. Catastrophe Management Solutions.

Common Sense Counsel: Issues involving hair, dress, grooming and piercing in our “individualistic culture” can be highly sensitive. Employers can avoid similar Charges and lawsuits by first developing grooming policies which conform to EEOC guidelines and second by training management personnel on proper implementation. CMS developed a grooming policy which, on paper, might appear to be racially neutral but apparently failed to correctly train its managers. It is the EEOC’s position in this lawsuit that hair grooming decisions and policies and their implementation should take into consideration differing racial traits, and cannot penalize blacks because they do not conform to normative standards for other races.

Similar dress and grooming issues have arisen in religious discrimination cases involving Abercrombie & Fitch Stores refusal to hire Muslim women in a headscarf because they did not fit “Its Look Policy.” An employer's obligation to engage in an interactive accommodation process is triggered when it is made aware that an employee or applicant has an objection to an employment policy based on some federally protected grounds. Training your managers to perk up their  ears whenever that occurs is just good business.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA 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 334-246-2901. Blog at

Thursday, September 26, 2013

Biometric Hand Scanner causes "Mark of the Beast" Lawsuit

by Tommy Eden

Consolidation Coal Company in West Virginia installed an attendance tracking system for payroll purposes at their Robinson Run Mine that requires employees to electronically sign-in using a biometric hand scanner. This technology creates and stores electronic information about an individual’s hand geometry for purposes of future identification.

Employee Beverly Butcher is an Evangelical Christian with 35 years of service at the Mine. When faced with the biometric logging in, he stated that he had a genuinely held religious belief that would not permit him to submit to biometric hand scanning.

Butcher then provided his manager with a letter that he wrote discussing his genuinely held religious beliefs about the relationship between hand scanning technology and the Mark of the Beast and antichrist discussed in the Bible, and requested exemption from hand scanning because of his religious belief.

His managers later responded by handing Butcher a letter written by its scanner vendor, Recognition Systems, Inc., addressed to “To Whom it May Concern.” The vendor’s letter discussed the vendor’s interpretation of Chapter 13, Verse 16 of the Book of Revelation contained in the Bible; pointed out that the text of that verse references the Mark of the Beast only on the right hand and forehead; and suggests that persons with concerns about taking the Mark of the Beast “be enrolled” with their left hand and palm facing up. The letter concludes by assuring the reader that the vendor’s scanner product does not, in fact, assign the Mark of the Beast.

Butcher proposed that he continue submitting his time and attendance manually as he had previously done, or that he be permitted to check in and check out with his supervisor.

At a later meeting, his managers proposed that Butcher should submit to hand scanning of his left hand turned palm up rather than his right hand. Butcher rejected their offer stating that he is prohibited by his religion from submitting to scanning of either hand. The managers declined to accommodate Butcher’s request to be exempted from the biometric sign-in telling him that he would be subject to disciplinary action if he refused to use the biometric hand scanning system.

Butcher promptly retired and specifically informed his managers that he was retiring involuntarily, telling them that he was retiring under protest and felt that he had no choice but to retire because of their refusal to grant an exemption from biometric hand scanning.

At least two persons employed at the Robinson Run Mine at the time that Butcher requested religious accommodation were permitted exemptions from biometric hand scanning due to missing fingers. These two persons were permitted to submit their time and attendance by other means.

Butcher then filed an EEOC charge claiming religious discrimination which the EEOC then took on as their own cause and filed suit in West Virginia U.S. District Court alleging religious discrimination under Title VII of the Civil Rights Act of 1964.  The case is U.S. Equal Employment Opportunity Commission v. Consol Energy Inc.

Common Sense Counsel: A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his/her religion and still work. An employer might accommodate an employee's religious beliefs or practices by allowing flexible scheduling, voluntary substitutions or swaps, or modification of login requirements.  Religious discrimination is a hot button issue for the EEOC. Have a well drafted employee handbook, dress code, job description with essential functions and be in an “accommodating” mood when employees approach you quoting scripture. Engaging in a bible sword drill with your employees in the interactive meeting is not a wise strategy. 

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA 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 334-246-2901. Blog at

Friday, September 20, 2013

Facebook 'Like' is Protected Speech

by Tommy Eden

Six deputies were not reappointed after Hampton, Va., Sheriff B.J. Roberts won reelection in March 2011. Each had clicked the Facebook's “Like” button for his opponent Jim Adams. The deputies claimed they were let go, or not reappointed, for supporting rival candidate Adams for the sheriff's job in violation of their First Amendment right to free speech. 

On September 18 the Fourth Circuit Court of Appeals ruled that clicking Facebook's “Like” button is speech covered by the First Amendment. The panel rejected the lower court's conclusion that “liking” a Facebook page was insufficient to merit constitutional protection.

The Fourth Circuit said that the deputies conduct in “liking” the campaign page of sheriff candidate Jim Adams qualified as speech and that expressing support for something via the like button was “itself a substantive statement…. the fact that such a message of support is communicated through a single mouse click rather than typed out through several individual keystrokes doesn't matter,” the court said.

“Liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it. In this way, it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech,” the 4th Circuit panel held.

The case had amicus briefs from the American Civil Liberties Union, the National Association of Police Organization and Facebook Inc.  Facebook argued that liking a page is “core speech” and warranted constitutional protection. The Case is Bobby Bland v. B.J. Roberts in the U.S. Court of Appeals for the Fourth Circuit.

Common Sense Counsel: The 4th Circuit’s decision may also be a guide for how the NLRB will handle the question of whether an employee clicking the “like” button is protected concerted activity under the National Labor Relations Act. This case is a clear warning to any employer, public or private, who might want to minimize the expressive value of a “like” or similar social media action. Pressing a 'like' button is a statement, and if two employees are making a statement, the NLRB could consider that to be protected concerted activity.

An employer’s social media policy should clearly define the limitations upon employees’ work-related use of social media channels requiring: (1)  employees to identify their association with the employer whenever an employee is using social media to comment upon the employer’s products or services; (2) unless an employee’s blogging or online postings are officially sanctioned and reviewed by the employer, the employee should be required to use conspicuous disclaimers that his or her views do not represent the views of the employer; (3) cover issues such as the use of photographs and names of co-employees or customers; and (4)  employees should be reminded of the employer’s right to lawfully and respectfully monitor their social media postings and other online activities for compliance with the employer’s policies, but be careful in your policy not to restrict employees’ right to engage in “protected concerted activity” under the National Labor Relations Act.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA 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 334-246-2901. Blog at

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Friday, September 6, 2013

11th Circuit Stings ASU over Racial & Sexual Slurs

The 11th Circuit Court of Appeals opening comments in its September 3 opinion in the case of Jacqueline Weatherly, et al v. Alabama State University (ASU) are chilling: “The facts of this case should greatly concern every taxpaying citizen of the State of Alabama, especially because it involves a public institution largely funded with tax dollars paid by the people of Alabama.”

The appeal stemmed from complaints by three former employees of Alabama State University (“ASU”), who alleged they were subjected to a racially and sexual hostile work environments and retaliation at the hands of two ASU senior officials. Following a jury trial verdicts were rendered in favor of Jacqueline Weatherly ($309,453.06), Lydia Burkhalter ($376,509.65), and Cynthia Williams ($392,648.23). Dr. John Knight, executive vice president and chief operating officer as well as a state legislator, and LaVonette Bartley, associate executive director in the Office of the Special Assistant to the President, were the ASU senior officials.  Weatherly and Williams are African-American, and Burkhalter is biracial (part African-American, part Caucasian). Bartley and Knight are also African-American.

The 11th Circuit Panel apologized in footnote 1 “for the offensive and demeaning language contained in its opinion, but such language comes directly from the trial record.” Some of the offensive remarks were: “Bartley routinely made comments in Weatherly’s presence like, “I’m tired of n__ shit” and would mockingly refer to ASU’s mass transportation as the “n__ bus line.” “Bartley’s abusive conduct was also aimed at Burkhalter’s family, as she called Burkhalter’s seven-year-old son “a n__,” upsetting him so much that he crawled under his mother’s desk and curled up in the fetal position.”

“Bartley described Burkhalter’s breasts as “melons” and her derrière as “hams,” and Bartley commented on Burkhalter’s thong underwear and its accompanying panty lines in the presence of another employee…and that maybe she should make [Burkhalter] strip to see how many other tattoos [she] had and where.” Bartley also made comments to Williams such as, “talk to the n__ side of the hand because the white side does not want to hear it.”

Knight also made awkward and inappropriate requests, asking Burkhalter to dance for him the way she had danced at a party. On Burkhalter’s birthday, Knight called her after work and asked “what the “wildest thing” she could do for her birthday would be and told her to think of a “special thing” she wanted for her birthday and tell him.”

Knight threatened retribution for ASU employees who cooperated with the EEOC in their investigation of Weatherly’s EEOC Charge, warning that “no one was to speak with EEOC and that if they did, they would be dealt with. Terminated.” All three employees verbally and in writing reported the incidents to ASU Human Resources and requested transfers. An HR official responded that nothing could be done. All three were eventually fired.

Common Sense Counsel: I have learned in my years of conducting harassment investigations to not be shocked - but this opinion comes as close as any. Allowing comments, or conduct based on race or sex can create an intimidating, hostile or offensive work environment even among those of the same race and sex. Having a legally compliant anti-harassment policy, annual employee wide training, prompt and effective investigation of complaints by an outsider and taking proper remedial actions are keys to good risk reduction. A link to the full text of the 11th Circuit opinion is provided and is absolutely shocking.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA 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 334-246-2901. Blog at

Wednesday, August 28, 2013

Dunkin Donuts, Strippers and Anheuser-Busch in FLSA Cases

By: Tommy Eden

Dunkin Donuts: Franchisee with 55 locations in New Jersey and New York has agreed to pay $198,000 in back wages after a Department of Labor investigation revealed violations of the Fair Labor Standards Act (FLSA) by failing to pay 56 store managers overtime. The underpaid managers were exempt, salaried employees, but saw their pay reduced when they logged less than 60 hours per week.
The FLSA's overtime exemption for management employees who handle certain executive supervisory responsibilities only applies if those workers earn a guaranteed weekly salary of at least $455. While the job duties of managers fell within the parameters of the executive exemption they did not receive a regular guaranteed weekly salary. These managers were owed overtime once they worked 40 hours for the week because taking improper salary deductions invalided their exempt status.

Strippers: Georgia federal judge recently granted certification to a class of exotic dancers in a suit accusing The Great American Dream Inc., which operates under the name Pin Ups Nightclub, of improperly categorized its strippers as independent contractors in order to avoid paying them minimum wage. The dancers also alleged in their complaint that the strip club unlawfully deducted nightly "house fees" from their tips and required them to share their gratuities with however many other entertainers were dancing on stage simultaneously. The case is Stevenson v. The Great American Dream Inc. 

Free Beer: Earlier this month a class of California brewery workers hit Anheuser-Busch with a suit accusing it of denying them proper overtime wages. The suit alleges that the value of free and discounted beer (called “incentive payments”) was unfairly excluded in pay-rate calculations, lowering their overtime payment. When non-exempt employees work more than 40 hours in a week, they are entitled to one-and-one-half times their “regular rate” of pay. The regular rate is to be adjusted when an employee receives a bonus or other incentive compensation. The case is Anthony Controulis v. Anheuser-Busch.

Common Sense Counsel: I don’t make up this stuff. All of these cases were actually reported in the last 30 days and represent a small fraction of the FLSA cases I have reviewed for this article. FLSA violations are the most common and costly employment lawsuit being brought and employers are paying out millions in settlements and attorney fees. With the FLSA self help to determine if you are in compliance is simply not a legal option and an ounce of prevention with a wage and hour audit is the only risk reduction strategy.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA 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 334-246-2901. Blog at

Wednesday, August 21, 2013

Logo Work Clothes May not be Taxable

By: Tommy Eden, Attorney

On February 5, 2010 - The Internal Revenue Service (IRS) released a private letter ruling that the value of small items such as shirts, gloves, and hats provided by employers can be excluded from workers' taxable income. The exemption for the clothing items falls under an IRS rule allowing an income exclusion for benefits of minimal value where determining that value is "unreasonable or administratively impracticable," the de minimus fringe benefit rule in Code Section 132(a)(4)states: “The term “de minimis fringe” means any property or service the value of which is (after taking into account the frequency with which similar fringes are provided by the employer to the employer's employees) so small as to make accounting for it unreasonable or administratively impracticable. Section 1.132-6(b)(1) of the Treasury Regulations states:

Generally, the frequency with which similar fringes are provided by the employer to the employer's employees is determined by reference to the frequency with which the employer provides the fringes to each individual.“

According to the letter, the employer provides items such as tee shirts, polo shirts, sweaters, jackets, swimsuits, socks, sweatshirts, coats, pants, jeans, shorts, gloves, hats, fanny packs, belts, clip-on ties, and equipment bags bearing the employer's logo. The employer said it provided the items twice annually at the most.

In the Analysis portion of the letter the IRS stated: “The Code and Regulations require Taxpayer to establish that the value of the items it seeks to exclude as de minimis fringes is so low as to make accounting for them administratively impracticable. Neither the Code nor the Regulations specify a particular value above which an item can no longer be considered a de minimis fringe.” On the issue of the difficulty of accounting for the gifts, generally an "objective guidepost" would be if the cost of determining an item's value would be greater than the cost of the benefit.”

The IRS ultimately agreed that the employer's provision of logo work clothing items would qualify for the income tax exemption. The IRS cited the lack of precise cost information from vendors, the difficulty of establishing fair market value, and the costs that would have to be incurred to track the value received by each employee given the employer's large and decentralized structure.

Ruling is available at

However, on May 20, 2011, the IRS revoked that Private Letter Ruling:
Common Sense Counsel: if you give any of the logo items to your employee listed above, you need to read this IRS letter (and revocation letter) and give your accountant a copy. Otherwise your employees may have a taxing problem when they wear your stuff.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP 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 334-246-2901. Blog at

Call to Police Reporting Harassment Protected

By Tommy Eden, Attorney
In Scarbrough v. Board of Trustees Fla. A&M Univ., (11th Cir. Oct. 22, 2007) the Court determined that an employee who called campus police when his supervisor allegedly threatened him after he rejected the female supervisor’s advances may have been engaged in protected activity under Title VII of the 1964 Civil Rights Act and were issue for a jury to decide.
Dushun Scarbrough was hired on Aug. 10, 2004 to work for Florida A&M University as an academic advisor for student affairs in the School of Nursing. Shortly after he was hired, he claimed that his female supervisor made inappropriate and unwanted advances toward him. He also claims that he consistently rebuffed those advances. During September 2004 she allegedly made an overt sexual advance toward him during a “mandatory meeting” where she required him to attend at her home. He then immediately left her home. The alleged retribution for his hasty departure consisted of his boss overloading Scarbrough with work responsibilities and verbally accosting him in the workplace.
Scarbrough discussed the incident at his bosses home and the ensuing maltreatment with the dean of the nursing school. He met with the dean on numerous occasions and during the fall semester of 2004, when she represented to Scarbrough that she had spoken with his boss and that her attitude should improve. Scarbrough then interviewed with the Dean for an available student coordinator position in the nursing school and the dean recommended that he be hired for the position.
A short time later, Scarbrough claims that his boss verbally attacked him with abusive and profane language, spat in his face and knocked papers out of his hand. Scarbrough reported this incident to university administration, at which time he was granted permission to take the remainder of the year off (approximately two weeks). Scarbrough believed that his bosses outrageous behavior stemmed from his rejection of her earlier advances. He filed a formal discrimination complaint against his boss and the university with the Florida EEO Agency.
Shortly after filing the complaint, Scarbrough’s tire was slashed. Scarbrough’s neighbor provided a description of the car that drove away from Scarbrough’s home at the time of the incident and that description resembled his boss’ car. Then his boss allegedly confronted Scarbrough in a vulgar manner a second time and threatened him with violence over an office telephone bill.
In response to this alleged behavior, Scarbrough called the university campus police and sought a court injunction against his boss. The next day, the dean withdrew her recommendation that Scarbrough transfer to the student affairs coordinator position and discharged him for “unprofessionalism.” The dean incidentally received a copy of Scarbrough’s formal discrimination complaint the day before she discharged him from the university’s employ. The university maintained that Scarbrough’s involvement of the campus police was “unnecessarily disruptive.” It therefore determined that Scarbrough’s termination was warranted.
The 11th Circuit held that where, as here, involving the police allegedly derived from an effort to protect against actions that are intertwined and interrelated with alleged sexual harassment; it cannot be deemed “unprofessional” conduct for which an employee can be terminated. An employee has a right to police protection irrespective of whether it may cause some disruption in the workplace. Furthermore, Scarbrough’s call to the police may be deemed protected activity under Title VII of the 1964 Civil Rights Act if he was threatened and physically accosted for rejecting his bosses’ sexual advances. If involving the police is protected activity, then Scarbrough’s discharge was retaliatory and therefore unlawful. The 11th Circuit Panel vacated the District Court’s summary judgment and found that all of the issues were left for a jury to decide.
Common Sense Counsel: The broad range of behavior that may be deemed “protected activity” under the anti-retaliation provision of Title VII of the 1964 Civil Rights Act has widened considerably over the past few years. To the degree conduct (even disruptive conduct) could reasonably be perceived as intertwined and interrelated with alleged harassment, an employer should not use that conduct as the basis for an employee discharge. See the EEOC Website for detailed guidance on the subject of unlawful retaliation

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP 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 334-246-2901. Blog at

Thursday, August 15, 2013

Paula Wins Bitter Sweet Victory

As you may recall, Paula Deen and her brother Earl "Bubba" Hiers were sued for racial and sexual discrimination in the work place in U.S. District Court in Savannah, Ga. In her May 17 video-taped deposition, the 66-year-old Food Network star and Savannah restaurant owner testified that she has used racial slurs, specifically the “N” word, in the past but insisted she and her family does not tolerate prejudice. Paula later cried like a baby on The Today Show begging forgiveness as the Food Network pulled her cooking show.

As I predicted in my column on June 30, U.S. District Judge William Moore Jr. ruled earlier this week that Lisa Jackson, an ex-manager of Uncle Bubba's Seafood and Oyster House, could not bring a race discrimination claim based on how her employer's alleged racism damaged her relationships with her black subordinates.

The former manager alleged that the restaurant owners used racial slurs, barred black employees from using the customer restroom even though white employees could, and refused to hire black employee as hostesses. This all caused Jackson to have significant personnel management challenges as black employees turned to her and she was powerless to rectify their problems, she claimed.

In his Dismissal Order Judge Moore found that Title VII does "impose a code of civility in the workplace and while Ms. Jackson may have faced significant challenges in managing a workplace allegedly permeated with racial discrimination, her difficulties do not fall within the zone of interests sought to be protected by Title VII and cannot support a claim for racial discrimination under that statute." His decision is in line with 11th Circuit Court of Appeals authority holding that a white employee’s interests fell outside the scope of the rights and individuals Congress had been attempting to safeguard through the Civil Rights Act. Common Sense Counsel: In a dog-eat-dog world – it pays to hire the right dog. Keep in mind that for the defense attorney defending a client’s deposition, the day can be a nerve-wracking, sweaty armpit experience where a weak performance or just one poor answer can sink a case or for Paula a multimillion dollar business enterprise.  First, an attorney should try to dispose of questionable claims in the lawsuit before the client’s deposition. Second, the attorney should seek to limit a client’s answers to offensive and not legally relevant questions, or at the very least file a motion for a protective order to keep the deposition testimony from being made public in a court filing. Third, don’t get bit by your own dog by ignoring racial slurs, jokes, or discriminatory misconduct just because act committed by senior management.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP 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 334-246-2901. Blog at