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Thursday, June 27, 2013

Getting Started to Win Alabama Unemployment Compensation Case Resources:




Click below for resources.

1. Rules of Conduct

2. Alabama Drug Test Disqualification Form

3. Alabama Drug Free Workplace Policy Intake Worksheet

4. Alabama Employee Handbook Intake Questionnaire

5. Immigration Compliance Check-Up Review


6. Workplace Violence Prevention Policy

7. Employee Written Warning


Click below to View Alabama Cooperative Extension System Webinars

“Alabama Unemployment Compensation Bootcamp”
Unemployment Compensation Part 1
http://www.youtube.com/watch?v=SowUy4GJEFs&feature=youtu.be

Unemployment Compensation Part 2
http://www.youtube.com/watch?v=1Ac9eRW_jjY


“Guns in Parking Lot Act”

http://www.youtube.com/watch?v=xsKJpC3msBA&list=SPkNoAmOtt__-w9dwvWndzQqawDZM4B5MU


“7 Tips to Prevent Workplace Violence”

http://www.youtube.com/watch?v=pgH-UdAgjuQ&list=SPkNoAmOtt__-w9dwvWndzQqawDZM4B5MU


“Untangling the New Form I-9”

I-9 Introduction
http://www.youtube.com/watch?v=2zCUgGVIsYQ&list=SPkNoAmOtt__-w9dwvWndzQqawDZM4B5MU

Why Participate in the Training
http://www.youtube.com/watch?v=IA2s3ZhW_40&list=SPkNoAmOtt__-w9dwvWndzQqawDZM4B5MU

I-9 Retention Requirements
http://www.youtube.com/watch?v=H0i_CDQlcPE&list=SPkNoAmOtt__-w9dwvWndzQqawDZM4B5MU

If Using E-Verify, Why Complete Form I-9
http://www.youtube.com/watch?v=R6QbofVpGJY&list=SPkNoAmOtt__-w9dwvWndzQqawDZM4B5MU

Should I copy the Documents
http://www.youtube.com/watch?v=RfkhIsXg0WQ&list=SPkNoAmOtt__-w9dwvWndzQqawDZM4B5MU

I-9 Tips to Avoid Penalties
http://www.youtube.com/watch?v=dPdV6Rlpq1A&list=SPkNoAmOtt__-w9dwvWndzQqawDZM4B5MU

What about I-9 Expiration Dates
http://www.youtube.com/watch?v=qcq1Y_Na9dk&list=SPkNoAmOtt__-w9dwvWndzQqawDZM4B5MU

I-9 Completion with Disabilities
http://www.youtube.com/watch?v=iaY766F1BT4&list=SPkNoAmOtt__-w9dwvWndzQqawDZM4B5MU

What about Minors & I-9 Completion
http://www.youtube.com/watch?v=F1KNs4FsI-M&list=SPkNoAmOtt__-w9dwvWndzQqawDZM4B5MU

What is the Employee’s Form I-9 Responsibility
http://www.youtube.com/watch?v=B9hef2HO4jQ&list=SPkNoAmOtt__-w9dwvWndzQqawDZM4B5MU

What is the Employer’s Responsibility
http://www.youtube.com/watch?v=0jvgvcZbCL4&list=SPkNoAmOtt__-w9dwvWndzQqawDZM4B5MU


“Affordable Care Act”

Segment 1: http://www.youtube.com/watch?v=gO9OgZ2A-qI&list=SPkNoAmOtt__-w9dwvWndzQqawDZM4B5MU&index=1

Segment 2: http://www.youtube.com/watch?v=LPH3VyjcIyA&list=SPkNoAmOtt__-w9dwvWndzQqawDZM4B5MU

Segment 3: http://www.youtube.com/watch?v=bgT3EajjzHc&list=SPkNoAmOtt__-w9dwvWndzQqawDZM4B5MU

Segment 4: http://www.youtube.com/watch?v=ImBsKFI-Jfc&list=SPkNoAmOtt__-w9dwvWndzQqawDZM4B5MU

Segment 5: http://www.youtube.com/watch?v=g50wTD6pVzs&list=SPkNoAmOtt__-w9dwvWndzQqawDZM4B5MU

Segment 6: http://www.youtube.com/watch?v=RD0CyVoMwCM&list=SPkNoAmOtt__-w9dwvWndzQqawDZM4B5MU  


These materials are for educational purposes only and are not intended as a substitute for the legal advice of an attorney knowledgeable of the issues covered as they relate to a user’s individual circumstances. The presenter makes no assurances regarding the accuracy or completeness of the above information.
"No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers."

Tommy Eden is an attorney with Constangy, Brooks & Smith, LLP, member of the ABA Section of Labor and Employment Law, East Alabama SHRM Board of Directors. Tommy can be contacted at teden@constangy.com or 334-246-2901 or his assistant Brad at bfrese@constangy.com or (334) 246-2902

Monday, June 24, 2013

7-Eleven Under Immigration Microscope


By Tommy Eden

Federal Prosecutors with the Department of Justice (DOJ) in New York on June 17 charged eight men and one woman with employing at least 50 illegal workers at 7-Eleven stores. They face charges of conspiracy to commit wire fraud, stealing identities and concealing and harboring workers living in the country without legal permission, and that the illegal employees were paid for a fraction of the 100 hours they worked in a week.

Those charged controlled 14 7-Eleven franchises in Long Island, N.Y., and Virginia. The DOJ claims the much of wages for the illegals were stolen, they were forced to live in housing owned by the defendants, and used more than 20 identities stolen from U.S. citizens. Identify theft victims ranged in ages from 8 to 78 years and include three dead people. The prosecutors labeled in their court filings that these defendants creating a “modern day plantation system.”

Under the Federal Immigration Laws, the government has the right to pursue any property used in the immigration fraud, and in their court documents moved to force the defendants to give up the franchise rights to the 14 stores and to seize five houses in New York worth $1.3 million. The Department of Homeland Security claims the case is the largest criminal immigration forfeiture in its history. If convicted, the defendants face 20 years in prison on wire fraud conspiracy and alien harboring charges. Identity theft charges can result in mandatory consecutive two-year terms of incarceration.

Two years ago a 7-Eleven employee approached the New York State Police about not being paid for his work which sparked the investigation. The investigation identified two families with roots in Pakistan and the Philippines who recruited from their own ethnic communities.

Common Sense Counsel: you may recall my prior article that on February 25, 2011, Howard Industries, Inc., pled guilty in federal court in Laurel, Miss to conspiracy to violate immigration laws and agreed to pay a $2.5 million fine Howard Industries waived indictment and acknowledged that the fine was in excess of the fine amount ordinarily provided by statute for the single count of conviction. The DOJ has shown no sympathy for employers harboring illegal aliens. Steps Alabama employer should take to avoid their own bad hire decision, and a hefty fine are as follows: 1) participate in E-Verify; 2) adopt an immigration verification policy and follow it; 3) have your current Forms I-9 audited for technical compliance; 4) train all your hiring manager on how to properly complete the new 2 page Form I-9; and 5) know who you will call when ICE or the DOJ knock at your door.

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 or www.alabamaatwork.com









Loose Lips Double Whammy for Employers


By: Tommy Eden

First Whammy: William Harvel applied for a position with Professional Freezing Services, a Chicago cold storage warehouse, for its warehouse manager position. During the employment hiring process the Company learning during interviews that Harvel had been diagnosed with prostate cancer and refused to go forward with Havel's hire.

Harvel then filed a Charge of Discrimination under the Americans with Disabilities Act (ADA) alleging that the employment opportunity was withdrawn because the company learned of his prostate cancer. On June 5 the EEOC took up his cause and filed suit (EEOC v. Professional Freezing Services) seeking back pay and compensatory and punitive damages for Harvel.

The recent EEOC's strategic enforcement plan lists barriers to hiring and emerging legal issues and on May 15, 2013, updated its informal guidance for employers on how the ADA as Amended (ADAAA) applies to job applicants and employees with cancer in light of the expansion of the definition of a disability under the law. The guidance states that individuals with cancer, diabetes, epilepsy and intellectual disabilities clearly fall under the protection of the ADAAA.

Double Whammy: Fabricut, Inc., the world’s largest distributor of decorative fabrics, on May 7 agreed to pay $50,000 to settle a disability and the first ever genetic information discrimination lawsuit filed by the EEOC. Rhonda Jones worked for Fabricut in a temporary position as a memo clerk for 90 days.

When her temporary assignment was coming to an end, she applied for a permanent job in that position. Fabricut made Jones an offer of permanent employment on Aug. 9, 2011, and sent her to its contract medical examiner for a pre-employment drug test and physical. When Jones reported for her physical, she was required to fill out a questionnaire and disclose the existence of numerous separately listed disorders in her family medical history. The questionnaire asked about the existence of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and "mental disorders" in her family. Jones was then subjected to medical testing, from which the examiner concluded that further evaluation was needed to determine whether Jones suffered from carpal tunnel syndrome (CTS). Fabricut rescinded its job offer. The EEOC determined that Fabricut violated the Genetic Information Nondiscrimination Act (GINA) when it asked for her family medical history in its post-offer medical examination.
Common Sense Counsel: Most EEOC Charges and suits are usually the direct result of loose employer lips. Teach your interviewers these risk reduction tips: 1) Don’t Ask Any Family Medical History Questions, or questions about current medical conditions not directly job related, at any time during the hiring process; 2) Using a Third Party Medical Provider to Make Medical History Inquires Will Not Protect You: and 3) EEOC Enforcement Will Put Your Policies in the Spotlight so make sure they are legal.

Tommy Eden is an attorney with Constangy, Brooks & Smith, LLP, member of the ABA Section of Labor and Employment Law, East Alabama SHRM Board of Directors. Tommy can be contacted at teden@constangy.com or 334-246-2901.



Monday, June 10, 2013

Bullet-Proofing your Employee Discharge Decision



By Tommy Eden

How does an employer (fairly and respectfully) fire someone without getting sued, or win the case if they do? A winning employer establishes written workplace rules for conduct, safety, appearance, etc. (Employee Handbook is the best place to give notice). When those established rules are not followed the employer takes action. First, by disciplining the employee in an effort to bring the person back in compliance with the rules or expectations. Second, by terminating a non-performing employee or one who has engaged in workplace misconduct. Harder than it sounds.

The following is a short checklist an employer may consider before terminating an employee so that you can prove "just cause" before any fact-finder; i.e. EEOC, DOL, Unemployment Compensation Hearing, Court, Jury, Arbitrator, etc. A “just cause” termination is the highest standard of proof that may be required in an employment case and steps more government agencies are looking at when a protected category employee is discharged. Meet it and you typically will win before any fact finder. Written proof that you followed each one of these steps may be a critical component to ultimately prevailing:

1) Can you prove that the employee had fair notice of the rules or standards of conduct or production standards?
• Have the rules been given to the employee, either orally or in writing? (Updated Employee Handbook with signed acknowledgement preferred; training log is even better)
• Are the rules related to the employer’s legitimate interests, e.g., customer loyalty, productivity, safety, security?

2) Did you conduct a fair investigation before a decision was made?
• After learning of the employee’s misconduct, did the employer promptly conduct an investigation? (24-48 hours to get started is best)
• Was the employee notified of the alleged misconduct? In writing?
• Was the employee given a chance to respond to the allegations?
• Did the employer investigate any claims made by the employee?
• Was there substantial evidence, after the investigation, of a rules violation you can identity in the Employee Handbook?
• Did you examine the employee’s personnel file? Including evaluations?

3) Were you consistent in the manner in which discipline was administered?
• Have other employees been disciplined for the same or similar violation?
• If so, have they received the same or similar discipline?
• Level of discipline for classes of offenses clearly set forth in Handbook?

4) Did you first utilize progressive discipline?
• Is the proposed punishment reasonable in light of the violation?
• Will the discipline put the employee back in compliance with the rules (signed discipline receipt by employee is best way to show notice)?
• Will it encourage other employees to follow the rules?
• Should the employee receive a warning and a second chance for a minor violation or is a violation so gross as to require immediate discharge?
• Are there any mitigating circumstances, e.g., good work attendance, seniority, good disciplinary history, remorse by the employee?
• If the rule has not been previously enforced, have your given fair notice that will be in the future, i.e., righting the ship?
• Have you consulted an experienced HR professional or employment attorney before discharging a protected category employee?

5) Have you developed an objective and respectfully worded paper document trail proving you followed each one of the above steps? If so, congratulations you may have conducted a "just cause" termination and can sleep better at night.

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.






Friday, June 7, 2013

Alabama Workplace Violence Prevention Resources


The DO’s and DON’Ts Under the Alabama Guns in the Parking Lot Act & 7 Tips to Prevent Workplace Violence Webinar Training and Employer Resources


Tommy Eden of Constangy, Brooks & Smith, LLP
Rosemary Elebash of NFIB
Jay Jones, Lee County Sheriff




Auburn University Active Shooter Response Training
 By Chance Corbett
Auburn University Department of Public Safety



PRESS RELEASE: Extension System Trains Alabama Employers and Employees on New "Guns in the Parking Lot" Act

The Alabama Cooperative Extension System has three recently posted on its YouTube Channel and Website DO’s and DON’Ts for Private Employers Under the Alabama Guns in the Parking Lot Act & 7 Tips to Prevent Workplace Violence. All Alabama employers will be affected by Alabama Act 2013-283, commonly known as the "Guns in the Parking Lot Act," which was signed into law May 22, 2013, by Alabama Gov. Robert Bentley and will become effective August 1, 2013. The new law restricts an employer’s right to prohibit the storing and transporting weapons in locked personal vehicles, out of plain view, in an employer’s parking lot. The new law applies to handguns for those employees with a pistol permit, and hunting rifles and shotguns for those employees with an Alabama Hunting License.

The Alabama Cooperative Extension System, the Alabama Federation of Independent Business and Tommy Eden of the management labor law firm of Constangy, Brooks and Smith, LLP partnered to present this two-part webinar. “The webinar is a great tool for every Alabama employer to use for both workplace violence prevention training as well as to educate its supervisors and employees on the new Act,” said Dr. Gary Lemme, Director of the System.

“With thousands of Alabama residents holding a concealed weapons permit, as well as an Alabama Hunting License, this law will have significant implications within the workplace for employers and employees alike and employers need to be thinking prevention. Workplace violence is a nationwide problem and this new law gives every employer a great opportunity to but in place a Workplace Violence Prevention Policy in conformity with the new Act and involve their employees to be part of the solution and not part of the problem,” says Eden. “Every employer should seriously consider developing now a liaison relationship with local law enforcement before an issue of workplace violence ever arises,” counseled Sheriff Jones in the Webinar.

Eden stresses that while the law prohibits employers from enacting and enforcing policies that prevent employees from transporting or storing out of sight firearms in their locked, private vehicles in an employer parking lot, it does not prevent employers from restricting in their policy the possession of concealed handguns on other parts of company property, or while in the performance of duties for the employer. “Employers will need to adopt a written policy and possibly a workplace violence prevention poster to make sure all employees understand their policy. Employers who take adverse action against an employee who lawfully takes advantage of the protections of the Act may subject their company to a lawsuit,” says Eden.

The training, hosted by Eden along with Alabama NFIB Director Rosemary Elebash and Lee County Sheriff Jay Jones, is available at: http://bit.ly/13hDF0x, and is viewable on any mobile device on the System’s YouTube channel or www.aces.edu website.

"While, in the view of many, the new law strongly affirms the Second Amendment right to keep and bear arms, it does present employers with several challenges that should be carefully sorted out before the law goes into effect in August”, says Elebash.

Elebash and other trainers stress the importance of employers familiarizing themselves with all the implications of the new law so they can anticipate the kinds of workplace policies that should be put in place when the law becomes effective August 1, 2013. As she stresses, the new law creates several legal nuances which employers may initially find challenging.

Section 5 of the new law creates absolute immunity for employers in the event a firearm stored in the employer parking lot is involved in a workplace incident.
With the signing of this act May 22, 2013, Alabama joins 18 other states that have passed similar "guns-at-work" or "parking-lot" laws, though the restrictions on employers rights to restrict the storage and transportation of firearms vary from state to state.