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Tuesday, May 28, 2013

Guns in the Parking Lot – No Permit Required

By Tommy Eden, Attorney

On May 22, Alabama Governor Robert Bentley signed into law an Act limiting an Alabama employer’s right to prohibit guns and ammunition in the workplace. While the law does not necessarily allow employees to carry firearms at work, it does allow employees to store, and have access to, firearms kept in privately owned vehicles that are parked in employer provided parking areas. Considering the fact that thousands of Alabama residents hold a concealed pistol permit, this law is likely to have a significant impact on the workplace. Alabama Act 2013-283, commonly referred to as the “Guns in the Parking Lot Act” is effective August 1, 2013.

Scope of the law
The law prohibits public and private employers from enacting and enforcing policies that prevent employees from transporting or storing firearms in their locked, private vehicles while parked on or in an employer provided parking area. However, the law does not prevent employers from prohibiting the possession of concealed handguns on company property. Rather, the restrictions are limited to employers’ treatment of employee parking lots. Importantly, the law applies to all lawfully-owned firearms, not just those owned under a concealed pistol permit.

With Alabama, a total of 19 states have enacted “guns-at-work” or “parking lot” laws, including Alaska, Arizona, Georgia, Florida, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Nebraska, Ohio, Oklahoma, Tennessee Texas and Utah, with each state imposing varying restrictions on employers’ right to restrict firearms on company property.

Eligibility Criteria
The Act under Section 4 describes firearms that employees may possess in their locked vehicles which are located in their employers’ parking lots. It also restricts an employer from prohibiting an employee from having a firearm which is out of sight and in his or her locked vehicle if the employee has met certain eligibility criteria as follows:

If the employee has a concealed weapons permit: The employee is permitted to have a pistol or long gun (shot gun or rifle) in his or her car


If the employee does not have a concealed weapons permit: The employee can, during hunting season, have an unloaded rifle or shotgun legal for hunting (and not a pistol) out of sight in his or her locked vehicle

The employer can restrict an employee who does not have a concealed weapons permit from having a firearm in his or her car for any of these reasons: • The employee does not have a valid Alabama hunting license;

• The employee has been convicted of a crime of violence;

• The employee has been convicted of a crime involving domestic violence;

• The employee is subject to a domestic violence restraining order;

• The employee has previously been committed to a psychiatric hospital; or

• The employee has prior documented incidents of workplace threats or violence.

  The Act still includes a long list of public places, including most government buildings, Courthouses, Schools, City Council Chambers and County Commission meeting, where citizens and employees could not carry concealed weapons.

While an employer is not permitted to ask, if the employee gives notice that they do possess a gun in their locked vehicle, or if the gun is in plain view, the employer may determine whether the employee meets the above eligibility criteria. If the employee is not in compliance, the employer may take disciplinary action. An employer may not take any adverse employment action against the employee solely based on the presence of a lawful firearm in the employee’s vehicle when the eligibility criteria is meet. Otherwise, the employer is subject to being sued in an Alabama Court, after a 45 day demand period, for lost wages, lost remuneration, benefits, and demotion cause by the adverse action. Additionally, the employer is subject to injunctive action for violation of the rights allowed by the Act and attorney fee to the prevailing party.

Shield from Liability
While some employers may find that the law intrudes upon their private-property rights, it may provide a shield from some liability under Section 5. The employer may not be held liable for damages that flow from use of a firearm that is stored according to the provisions of the law.
Common Sense Counsel
As of September 1, 2013, employees in Alabama can begin taking their guns to work, or at least to the parking lot, without facing the risk of being terminated for doing so. An employer can not even ask about guns in their vehicle. This Act is a classic example of the best compliance policy is “don’t ask – don’t tell.” All Alabama employers are encouraged to promptly review and revise any workplace violence prevention policies relating to the possession of firearms on company property to ensure compliance with the new law. A reading of the entire new Act is highly recommended as its provisions are much more far reaching than just the workplace. Also look hard at updating your Professional Conduction of Prohibition against Harassment to include prohibitions on bulling as objectionable conduct. Workers who are bullied at work may decide that the gun in their pick-up is the great equalized. Training is a critical element of any violence prevention program as every employer has a general OSHA imposed duty to provide a safe workplace.
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 teden@constangy.com or 334-246-2901. The entire Act can be viewed by clicking on the link at www.alabamaatwork.com

Wednesday, May 22, 2013

Employee Resignation-Get it in Writing


By: Tommy Eden

Bilqis Miles (“Miles”) suffered a psychotic break in 2008 while at working at Nashville Electric Service (“NES”) causing her to run screaming from the building. In the fall of 2010, she took medical leave under the Family Medical Leave Act (FMLA) on three occasions.

On April 11, 2011, Miles suffered another psychotic break—acute psychosis including visual hallucinations—that required hospitalization for which she was granted FMLA leave. Miles was discharged from the hospital on April 18, 2011.

On May 5, 2011, Mile submitted a medical release to NES stating that she was “capable to return to work without restriction as of 5/4/11.” The next day Miles informed her supervisor that she would not be coming back to work. She then submitted a handwritten signed letter of resignation at the request of her supervisor.

Three days later, Miles sought to rescind her resignation, but NES refused to reinstate her. Miles then sued contending that her resignation was coerced and that NES did not fulfill its duty under the FMLA to determine whether she was requesting further medical leave following her return to work. She claimed that NES interfered with her rights under the FMLA by accepting her resignation and not second guessing her decision.
The United States District Court Judge found that the evidence demonstrated that Miles voluntarily quit her job and that NES had no duty under the FMLA to second-guess her decision to resign; granting summary judgment to NES. On May 14, the Sixth Circuit Court of Appeals agreed holding that NES did not violate the FMLA.

To invoke the protection of the FMLA, the Circuit Court said, “an employee must provide notice and a qualifying reason for requesting the leave, and nothing in the Act places a duty on an employer to grant leave without such a request or notice by the employee…At issue in this appeal is whether NES failed to fulfill a duty to inquire further in the context of Miles’ conversation with [her supervisor] to determine whether Miles was requesting leave for a potentially FMLA-qualifying reason?” Under the FMLA, when an employer does not have sufficient information about the reason for an employee’s use of leave, “the employer should inquire further of the employee ... to ascertain whether leave is potentially FMLA-qualifying.” (Miles v. Nashville Electric Service)

Common Sense Counsel: Top 7 FMLA Tips:
• Always get an employee resignation in writing, dated and signed;
• Use the right FMLA Policy language and Forms and know the Regulations;
• Start the FLMA clock when WC claim is filed;
• Train superiors to get HR involved when the employer “should inquire further” and not “second guess”;
• Use your Occupational Doctor to get wise advice;
• Build your letter paper trail; and
• Remember that ADA reasonable accommodation rights arise once FMLA exhausted.

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 teden@constangy.com or 334-246-2901.

Tuesday, May 14, 2013

Fitness-for-Duty Done Right


By Tommy Eden

Owusu-Ansah, who is from Ghana, began working for Coca-Cola in 1999 as a call center customer service representative. He was promoted three times to become a quality assurance specialist where Owusu monitored the performance of frontline call center associates. At an evaluation meeting he claimed that between 2000 and 2009, he experienced several discriminatory incidents because of his nationality. Owusu then grew agitated and begin to bang his hand on the table saying that "someone was going to pay for this!"

His manager alarmed by the outburst consulted a company security manager about the threatening behavior who recommended that Owusu meet with an independent consulting psychologist who specialized in crisis management and threat assessment.

The psychologist met with Owusu and told Coca-Cola that he had concerns about Owusu's emotional and psychological stability, and "there was a strong possibility he was delusional." Coca-Cola placed Owusu on paid leave as the psychologist's suggested.

Eventually Owusu was referred to a psychiatrist with whom he initially refused to cooperate with. Later he underwent a personality test when Coca-Cola told him he needed to complete an evaluation to keep his job. The test placed Owusu within normal limits, and was cleared for work and returned to Coca-Cola.

Owusu then sued Coca-Cola, alleging it violated § 12112(d)(4)(A) of the Americans with Disabilities Act (ADA), which says employers cannot conduct medical test on employees to determine whether they have a disability, unless the test is job-related and is a business necessity.

The 11th Circuit Court of Appeals in Atlanta looked at Owusu's job description,, after his case was dismissed by the District Court, and held on May 8 that Coca-Cola's fitness for duty test was valid because it contained an essential function related to his ability to handle job related stress: "employee's ability to handle reasonably necessary stress and work reasonably well with others are essential functions of any position.” Franklin Owusu-Ansah v. The Coca Cola Company.
The Court went on to explain: "On this record, we conclude that Coca-Cola had a reasonable, objective concern about Owusu-Ansah's mental state, which affected job performance and potentially threatened the safety of its other employees."

Common Sense Counsel: A well drafted job description, good paper trail and an outside consulting doctor saved Coca-Cola in this case. Faced with an employee's threatening behavior, an employer must take action based on reasonable objective concerns which affect performance or safety. Take these steps today to be able to safely act tomorrow: 1) upgrade your job descriptions to make them ADA compliant listing essential duties, functions, knowledge, qualifications and work environment; 2) ask the employee for feedback and suggestions; 3) once revised, have the employee sign the job description and date with a supervisor witness; 4) use the new job description to make a multitude of decisions such as: hiring, promotion, discipline, fitness for duty, FMLA, ADA, FLSA, etc; and 5) engage a good occupational doctor to help you make reasonable objective decisions.

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 teden@constangy.com 334-246-2901.