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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