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Tuesday, July 30, 2013

Harder to Get Employees to Keep a Secret

In August 2012, the Boeing Company disciplined Joanna Gamble for communicating with coworkers about a recently completed human resources (HR) investigation into Gamble’s allegations against her supervisor.  She complained that the supervisor had referred to the mostly-female tool box meeting as a “bitch” session; and that he had used the word “bitch” when referring to two female employees, who he said reminded him of his ex-wife.

Boeing justified discipling Gamble by claiming that she had violated a confidentiality notice she had signed during the investigation, which specifically “directed” witnesses “not to discuss the case with any Boeing employee other than the investigators or the witness’ union representative, if applicable.” Gamble was not a member of the union.

Gamble responded by filing an unfair labor practice (ULP) charge with the NLRB alleging that the discipline unlawfully interfered with her statutory right under the National Labor Relations Act (NLRA) to discuss the terms and conditions of her employment with her coworkers. The case was assigned to an Administrative Law Judge.

Boeing admitted during the hearing that it routinely gave this same confidentiality notice to employee witnesses during HR investigations and that the notice was “effectively a rule of conduct.” The NLRB General Counsel charged that Board law is clear that such blanket confidentiality directives impermissibly infringe on employees’ statutory right to discuss among themselves their terms and conditions of employment and otherwise engage in concerted protected activity.

On July 26, 2013 the ALJ agreed holding that the notice would have a reasonable tendency to chill employees from exercising their statutory rights and likewise engaged in unfair labor practices under the NLRA. The ALJ held that Boeing had unlawfully disciplined Gamble.

Common Sense Counsel: There is currently a very thin NLRB line to walk when conducting an internal workplace misconduct investigation. Professional guidance can be most helpful to achieving a good outcome and avoid violating the law. Below is guidance language from the NLRB General Counsel that should be in forms:

The Company has a compelling interest in protecting the integrity of its investigations. In every investigation, the Company has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. The Company may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation in strict confidence. If the Company reasonably imposes such a requirement and you are involved in the investigation and you do not maintain such confidentiality, you may be subject to disciplinary action up to and including immediate termination

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. Workplace Blog
Click below to complete an intake questionaire to receive a proposal to update or develop your Alabama Employee Handbook:

Saturday, July 27, 2013

Can you carry a gun to football games after August 1? Alabama law says not without a permit

Although many fallacies and misconceptions surround the state's new gun laws, which will go into effect on August 1, one thing is clear: carrying guns into athletic events is illegal, even with a concealed carry permit. This applies to sporting events at any public or private school from elementary all the way to post-secondary. (Stephen Dethrage Full Story
Stephen Dethrage By Stephen Dethrage
July 27, 2013 at 12:19 PM

Alabama's laws on carrying firearms were overhauled in some areas and clarified in others by SB 286, a bill that was signed into law by Gov. Robert Bentley in May, and because of the length of the bill and it's legal language, most people have not read and understood the entirety of the law.

The reforms, now known as Act 2013-283, have generated a lot of conversation and questions, including a misconception that Alabamians can will be allowed to carry a gun into places like Bryant-Denny Stadium or Coleman Coliseum after Aug. 1, when the new law will go into effect.

While the law does limit the restrictions a property owner can put on gun owners who want to carry on their premises, exceptions are made for many places, such as jails or courthouses. The law expressly prohibits possessing a handgun at an athletic event without the explicit permission of someone with authority over the property. Here's the exact wording of Section 6 (b) of the law, with bold for emphasis:

In addition to any other place limited or prohibited by state or federal law, a person, including a person with a license issued under Section 13A-11-75, Code of Alabama 1975, may not knowingly possess or carry a firearm in any of the following places without the express permission of a person or entity with authority over the premises:
(1) Inside the building of a police, sheriff, or highway patrol station.
(2) Inside or on the premises of a prison, jail, halfway house, or other detention facility for those who have been charged with or convicted of a criminal or juvenile
(3) Inside or on the premises of a facility which provides inpatient or custodial care of those with psychiatric, mental, or emotional disorders.
(4) Inside the building of a courthouse or a courthouse annex.
(5) Inside any facility hosting an athletic event not related to or involving firearms which is sponsored by a private or public elementary or secondary school or any private or public institution of postsecondary education, unless the person has a permit issued under Section 13A-11-75(a)(1) or recognized under Section 13A-11-85.
(6) Inside any facility hosting a professional athletic event not related to or involving firearms, unless the person has a permit issued under Section 13A-11-75(a)(1) or recognized under Section 13A-11-85.
Section J of the Student Handbook of the University of Alabama and the weapons policy at Auburn University both also prohibit carrying guns on the grounds of the schools, but those rules would only apply to students, faculty and staff.

Act 2013-283 applies to everyone in the state, though, and prohibits Alabamians without a valid, sheriff-issued concealed carry permit from carrying handguns into athletic events on any level, whether it's the high school basketball championship playoffs, the Iron Bowl or a Birmingham Barons home game.

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Six things to know about Alabama's new gun law 6 days before it takes effect

Evan Belanger By Evan Belanger
 July 26, 2013 at 9:16 PM

Alabama's new firearms law is set to take effect Aug. 1. Full Story

Sponsored by Sen. Scott Beason, R-Gardendale, it is designed to clarify

Alabama's concealed- and open-carry laws and ensure law-abiding citizens have access to guns. Opposed by the Business Council of Alabama, it bars employers from prohibiting their workers from having loaded pistols in their vehicles while working.
The law blocks employers from punishing workers for having weapons in their vehicles and allows employees to sue if they are punished.
Here are some other notable features of the new law:

Parts of the law are still unclear

While the Alabama Legislature approved the law more than two months ago, law enforcement officers are still struggling to understand how it should be enforced, and some state officials say it needs clarification.

"Law enforcement is still unsure of what the bill says," said Randy Hillman, executive director of the Alabama District Attorneys Association.

In an effort to make sure the law is enforced "evenly and fairly," Hillman said they are attempting to conduct training with law officers. Though lawmakers who supported the law note that the Alabama Sheriffs Association and the Alabama District Attorneys Association supported the bill before its passage.

But Barry Matson, deputy director of the ADAA, told law officers during a training session this week, that many parts of the law still need clarification.

For example, the law says those with a conceal-carry permit can bring guns to sporting events sponsored by private or public schools and colleges, as well as professional sporting events.

However, it also says that, without express permission, they cannot carry firearms in any building or facility that limits access of unauthorized individuals with guards and other security features such as turnstiles or metal detectors.

That would include many college and professional sporting events. In those cases, the facility must display a sign stating weapons are prohibited.

It makes it harder for sheriffs to deny conceal-carry permits

According to Sen. Beason, the law changes Alabama from a "may-issue" to a "shall-issue" state.
To accomplish that, it requires county sheriffs, who are tasked with governing the issuance of conceal-carry permits, to issue such a permit within 30 days of the application.

It also limits the circumstances under which sheriffs can deny a permit to a "reasonable suspicion" that the applicant would use the weapon unlawfully or in a manner that presents a danger to the public or the applicant.

Other reasons to deny a permit specified in the law include evidence that the applicant is mentally diseased or defective, he or she falsified any portion of the permit application, was convicted of a violent crime, certain drug-related crimes or sexual offenses involving victims under the age of 12.

Sheriffs must consider how recent any of those events occurred when making their decision. The law requires sheriffs to notify the applicant in writing of the reason for denying the permit.

The law also provides for an appeal process, enabling applicants to seek a second opinion in the local district court, where the sheriff would bear the burden of proving the applicant should not be granted a permit.

Employers can't be sued for gun-related damages on their property

While the law prohibits employers from barring loaded guns from their property -- as long as they remain in a locked car -- it also holds them blameless for injuries or damages that may result.

The law specifically states that employers shall be "absolutely immune" from any claim or lawsuit seeking damages that may result "directly or indirectly" from a firearm brought onto their property.

It also specifies that the presence of firearms or ammunition does not constitute failure by the employer to provide a safe workplace and that employers have no duty to "patrol, inspect or secure."

Firearms are still barred from government buildings, the grounds of detention facilities as well as the grounds of mental health facilities.

You don't need a permit to have a gun in your vehicle if its not loaded
Those with a conceal-carry permit can keep a loaded gun in their vehicles at work, but any person who can legally own a firearm may keep a pistol in his or her car as long as it is not loaded.

In such cases, the gun owner must keep the pistol locked in a compartment or container that is affixed to the vehicle.

The firearm must remain out of reach of the driver and any passenger in the vehicle.

Alabama law already allowed residents to have unloaded hunting rifles in their vehicles without a conceal-carry permit.

You can carry a pistol without a permit if you don't conceal it

Even before the new law, it was legal under Alabama and federal law to carry an unconcealed weapon in public. But the new law goes a step further, stating that it should be a "rebuttable presumption" that the mere carrying of visible weapon, as long as it remains "holstered and secured," is not a violation in and of itself.

That does not mean law officers cannot stop and question a person for openly carrying a firearm.

ADAA Deputy Director Matson told law officers during a training session this week that they could do so.

Adding that part of his job was to put officers' minds at ease about the law, he said they still have the ability to stop a person legally if they have reason to believe a crime has been committed or public safety may be at risk.

You don't have to be an Alabama resident or a U.S. citizen

The law does not prohibit non-U.S. citizens from obtaining a conceal-carry permit and taking advantage of the new rights for gun owners.

Sheriffs considering applications from those who are not U.S. citizens must conduct an Immigration Alien Query through U.S. Immigration and Customs Enforcement before issuing a permit.

They must also obtain the applicant's country of citizenship, place of birth and any alien or admission number issued upon their entry into the U.S.

The law does not allow undocumented immigrants to obtain a conceal-carry permit.

Additionally, any person who resides in another state and posses a conceal-carry permit issued in that state is able to take advantage of the new law.

If a person relocates from another state to Alabama and possesses a conceal-carry permit issued by their previous state of residence, their permit is no longer valid once they relocate.

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Friday, July 26, 2013

Suing Cupid

By: Tommy Eden

It's Just Lunch USA LLC (IJL), the matchmaking service, last week reached a $900,000 settlement with the U.S. Equal Employment Opportunity Commission in a case where it was accused of refusing to hire male applicants for sales and dating director positions. The service sells memberships and provides the services of matching members and coordinating introductions between members. Inside Sales Directors and Dating Directors match and coordinate introductions between members.

Beginning early in her career as Human Resources Director Linda Twist was told by the IJL Chief Executive Officer and its Director of Sales & Training that “women were better-suited for the Inside Sales Representative and Dating Director positions because clients preferred to interact with women.” Twist expressed her opposition to the policy or practice of not hiring men as Inside Sales Representatives or Dating Directors.

In January 2009, IJL underwent a change in its senior management and Twist met with IJL’s new Chairman and the incoming Chief Executive Officer where she again expressed her opposition to IJL’s discriminatory policy or practice of not hiring men. Two days later Twist was terminated from her employment with IJL.

Twist then filed her EEOC Charge claiming that the company did not hire any male inside sales representatives and dating directors and that she was fired in retaliation for her opposition to this unlawful discriminatory practice. The EEOC took on Twist’s cause and filed suit in federal District Court in Florida.

Two days after suit was filed, IJL signed a consent decree to settle all claims, with Twist to receive $130,659, the amount she would've earned if she had not been terminated. Most of the remaining money is to be distributed to men who had applied for the jobs at the company's Hallandale Beach, Fla., office but were allegedly passed up because of their gender. The Federal Court consent decree also included a provision that IJL would be under the supervision of the EEOC for three years.

Common Sense Counsel: Even Cupid is not immune from gender discrimination lawsuits by the EEOC. IJL must now reform its hiring practices and keep detailed records of its job applicants and new hires. The decree requires that “IJL shall hire the best qualified candidates identified through the interview process and its hiring decisions shall be based on nondiscriminatory criteria." IJL agreed to set up an electronic system tracking its job applicants and how they were screened, and to perform a quarterly review of its "applicant flow" and new hires to be shared with the EEOC and evaluated for compliance with the agreement’s terms. Effective, Defensible and Legally Compliant Hiring Procedures are not sexy but will deflect the EEOC’s arrows.

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.

Click below to complete an intake questionaire to receive a proposal to update or develop your Alabama Employee Handbook:

Saturday, July 20, 2013

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

Alabama Workplace Violence Prevention Poster Download (2)

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

Tommy Eden & Jimmy Nolan of Constangy, Brooks & Smith, LLP

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."

Friday, July 19, 2013

High Court Gives Employers Gifts

By: Tommy Eden

By all accounts this last term of the Supreme Court was good for employers. The Court released decisions that will make it more difficult for employees to bring certain types of employment litigation.

In Oxford Health Plans v. Sutter justices unanimously affirmed an arbitrator's decision to allow arbitration on a classwide based on broad contractual language that did not expressly discuss class actions or class arbitration. The Supreme Court's deference to the arbitrator is a blueprint for employers looking to escape costly jury trials.

In American Express v. Italian Colors Restaurant the Court ruled that the Federal Arbitration Act does not allow a court to invalidate an arbitration agreement containing a class arbitration waiver simply because it would cost plaintiffs more to arbitrate their claim than they could possibly recover.

In Nitro-Lift Technologies LLC v. Eddie Lee Howard et al., the Court admonished the Oklahoma Supreme Court for voiding a non-compete agreement that contained an arbitration clause, saying the contract's validity was a matter for an arbitrator, not the courts to decide.

In University of Texas Southwestern Medical Center v. Nassar, the Court determined that a worker bringing a Title VII retaliation claim must show that retaliation was the "but-for" cause of an adverse employment action; i.e. the alleged retaliation would not have occurred absent an improper motive on the employer's part.

In Vance v. Ball State, the Court redefined "supervisor" more limited when it comes to harassment suits. Supervisor's actions in harassment cases can result in an employer being found to be vicarious liable. Now to be considered a supervisor one must have the ability to make a significant change to employment status, such as hiring, firing, failing to promote, reassigning with significantly different responsibilities or causing a significant change in benefits.

Common Sense Counsel: Gifts not fully accepted and acted upon are worthless. These cases will certainly make a lot of employers look at adopting employment arbitration agreements to reduce the risk of costly employment litigation.

All employers should consider taking the following steps: 1) only classify supervisors as those who fit into the narrow definition adopted by the high court; 2) when dealing with “sacred cow” employees always document legitimate nondiscriminatory business reasons and follow your handbook; 3) seriously consider adopting an employment arbitration provision in your handbook with an employee sign off that also includes class wide arbitration of all disputes; 4) designate a private panel of qualified arbitrators conveniently located for your business for the aggrieved employee to pick from; and 5) cover all potential employment disputes using broad arbitration language. See to prepare for Guns in the Parking Lot Act August 1.

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.

Click below to complete an intake questionaire to receive a proposal to update or develop your Alabama Employee Handbook:

Friday, July 5, 2013

Alabama Unemployment Compensation Bootcamp for Employers

By Tommy Eden

With no one to guide you, winning an unemployment compensation claim in Alabama on behalf of the employer can at times seem like a high wall to climb. This past week Alabama Department of Labor General Counsel Joey Ammons and I conducted a webinar Bootcamp session for the Alabama Cooperative Extension System teaching employers how to strengthen their skills to become “fit” enough to navigate the obstacle course and win more unemployment compensation claims on behalf of employers. Rosemary Elebash, Alabama Director of the National Federation of Independent Business moderated the sessions.

In 2012 Alabama employers paid more than $460 million in Unemployment Compensation taxes. Poor experience ratings in unemployment compensation cases has a sizable negative impact on an Alabama employer’s tax bill.

Winning unemployment compensation cases lowers an employer’s experience rating which equals lower taxes. Additionally, winning the unemployment compensation case may be evidence that an employer conducted a proper termination which can potentially result in even greater savings in related employment litigation.

Unemployment compensation disqualifications, both total and partial, in Alabama can fit in any one of the following eight statutory disqualification categories:
·        Voluntary quit
·        Act endangering safety of others
·        Use of illegal drugs after previous warning
·        Criminal act
·        Dishonest act
·        Actual or threatened misconduct connected with work- after repeated warning
·        Misconduct - no prior warning
·        License Revocation

Part I of the Bootcamp webinar analyzes how an Alabama employer can present evidence falling into each of the eight disqualifications. Not only is there a great discussion by the General Counsel of the statutory legal definitions, but also practical real-life guidance from actual cases litigated by the Alabama Department of Labor.

Part II of the Bootcamp webinar is a fast-paced Does and Don’ts rope course where we discuss how an Alabama employer can strengthen their grip by using the top 25 tips to win an Alabama unemployment compensation case.

Along the way we discuss potential employment litigation landmines, and how to defuse them, tips for getting an employee resignation in writing, shared warning forms, drug test refusal forms, disciplinary workplace rule language, and handbook policy  tips.
Common Sense Counsel: the Alabama Cooperative Extension System should be commended on its 2013 outreach to employers throughout the State of Alabama on a variety of employment law subjects; the most recent of which was Alabama Guns in the Parking Lot Act with Lee County Sheriff Jay Jones. All of these sessions can be viewed on the Extension’s YouTube Channel or at  There are hot links to all of the sessions at as well as the free forms shared on the webinar.

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.

Click below to complete an intake questionaire to receive a proposal to update or develop your Alabama Employee Handbook: