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Monday, July 28, 2014

Public Employee Drug Testing Still Tight Rope Walking


By: Tommy Eden

Public employers often mistakenly believe that they have the same drug testing rights as employers in the private sector. As a recent decision from a federal court in Florida shows, it ain’t necessarily so.

Karen Voss was offered a newly created position of Solid Waste Coordinator with the City of Key West. The job entailed marketing and planning related to the city’s recycling programs, and “overseeing other tasks within the City’s Solid Waste Utility.”

The offer, like most job offers, was contingent on her taking a drug test. Ms. Voss consented in writing to be tested, but instead of going to the collection site for the test, she went to the city attorney’s office and complained that the testing violated her rights. Because she refused to be tested, the city hired another candidate.

Ms. Voss sued the city with the help of the American Civil Liberties Union, contending that the drug test requirement violated her rights under the Fourth and Fourteenth Amendments to the U.S. Constitution. The court granted her motion for summary judgment as to liability. (The court will still have to determine what recovery Ms. Voss is entitled to.)

The Fourth Amendment prohibits unreasonable searches and seizures, and the Fourteenth Amendment makes these and other restrictions applicable to the states. Urinalysis drug tests are generally considered to be “searches and seizures” because they “intrude[] upon expectations of privacy that society has long recognized as reasonable.”

If the “search” is not based on “individualized suspicion of wrongdoing,” the government has to show that it had a “special need” or that the testing served an “important governmental interest.”

Common Sense Counsel: Because this was a standard pre-employment drug test, there was, of course, no individualized suspicion. But the City argued that the need for a drug-free workplace was a “special need,” that the “search” was not unreasonable because it applied only to applicants, and that the job was safety-sensitive, which justified the drug test. The court rejected all of these arguments.

Regarding the need for a drug-free workplace, the court found that there was no evidence showing that drug abuse was a problem with city employees or with applicants for city jobs. The court found that the job was not safety-sensitive because it did not require exposure to dangerous machinery and for the most part was a “desk job.” Perhaps the most damaging fact for the city’s case was that it did not require employees in this position or in related positions to be tested randomly for drug use. Finally, the court rejected the city’s argument that applicants could “reasonably” be tested even if employees could not.


If Key West had been a private sector employer, its drug testing program would have been fine, but public employers do not have the freedom of private sector employers. Public employers should have their drug-testing policies, the classification of safety-sensitive employees and the manner in which they apply those policies evaluated to make sure they can walk the Fourth Amendment tightrope with falling into a legal whirlpool.


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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com and follow on twitter @tommyeden3 

Friday, July 25, 2014

Proposed rule to extend Family Medical Leave Act protections to all eligible employees in same-sex marriages announced by US Labor Secretary

By: Tommy Eden
The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. The FMLA also includes certain military family leave provisions.
The Department of Labor has published a Notice of Proposed Rulemaking (NPRM) to revise the definition of spouse under the FMLA in light of the United States Supreme Court’s decision in United States v. Windsor, which found section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional.

Major features of the NPRM

The Department is proposing to move from a “state of residence” rule to a rule based on where the marriage was entered into (sometimes referred to as “place of celebration”).
The proposed definition of spouse expressly references the inclusion of same-sex marriages in addition to common law marriages, and will encompass same-sex marriages entered into abroad that could have been entered into in at least one State.
The Department proposes to define spouse as follows:
Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

Comment Period

The NPRM published on June 27, 2014 (79 FR 36445) in the Federal Register and interested parties are invited to submit written comments on the proposed rule at www.regulations.gov. Comments must be received on or before August 11, 2014. Only comments received during the comment period identified in the Federal Register published version of the Notice of Proposed Rulemaking will be considered part of the rulemaking record.

Common Sense Counsel:
It is recommended that employers consider making this change now. Merely insert after “spouse” the following language: the definition of "spouse" shall include an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.


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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com and follow on twitter @tommyeden3 

Tuesday, July 22, 2014

LGBT Discrimination by Federal Contractor Banned by Obama

By: Tommy Eden
President Barack Obama on July 21 issued an Executive Order banning sexual orientation and gender identity discrimination by federal contractors. The President's justification for signing the order was, “America's federal contracts should not subsidize discrimination against the American people.”

This recent order amends two existing executive orders. First, by adding to Executive Order 11,246, which applies to federal contractors sexual orientation and gender identity to the list of classes protected from employment discrimination. Second by amending Executive Order 11,478, which applies to federal governmental workers,  to explicitly prohibit gender identity discrimination takes effect immediately. The contractor order is expected to go into effect in early 2015, after the Labor Department's Office of Federal Contract Compliance Programs issues implementing regulations.

This executive order comes less than a month after the U.S. Supreme Court ruled in the Hobby Lobby case that an Affordable Care Act provision requiring employers to pay for certain forms of contraception for workers violated the Religious Freedom Restoration Act as applied to closely held corporations. That Supreme Court opinion left open the question of whether certain closely held corporations can challenge other legal requirements based on religious opposition.

Common Sense Counsel: Expect those challenges to come. The President directed the Secretary of Labor to prepare regulations within 90 days (by October 19, 2014) implementing the new requirements as they relate to federal contractors under Executive Order 11246, enforced by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), requires covered government contractors and subcontractors to undertake affirmative action to ensure that equal employment opportunity is afforded in all aspects of their employment processes. 
The Executive Order will apply to federal contracts entered into on or after the effective date of the forthcoming regulations and could cover contacts as low as $10,000 and contractors with as few as 10 employees. It is time for those covered employers to review their equal employment opportunity and harassment policies for compliance with the Executive Order. Employers who are government contractors should add both sexual orientation and gender identity as protected categories under these policies and check that reporting processes are put in place to ensure that discrimination is not tolerated against LGBT employees. The EEOC Comission ruled in Macy v. Holder on April 20, 2012, that transgender discrimination is discrimination on the basis of “sex” under the Title VII of the Civil Rights Act. Consequently, expect the EEOC in the near future to strongly encourage the same type of non-discriminatory language in all employer policies.
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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com and follow on twitter @tommyeden3





Monday, July 14, 2014

Reasonable Response by Employer Bars Hostile Environment Claim for Manager's Repulsive Behavior


By: Tommy Eden
Rhonda Simpson’s manager first approached her in 2002 at a Florence, Alabama McDonald’s because he said he was struck by Simpson’s Farrah Fawcett likeness. He then suggested that Simpson come see him at Big Lots should she ever need a job. Simpson eventually interviewed with the manager for a cashier position at the store and was hired.

            Simpson later claimed in her deposition that at some point, the manager attempted to kiss her and “he would have kissed her on the lips if she hadn’t turned her cheek for him to kiss her on her cheek.” Simpson also claims that the manager engaged in “the touching of arms, hands, shoulders, you know . . .” and “hugging all the time,” as well as making comments about customers’ “boobs” and “butts” as well as “said ass and tits and that kind of stuff” and also telling stories of his wild sexual exploitations.

            Each time she reported the incident to the Big Lots store manager, who would arrange a meeting and later report that he discussed her concerns with Simpson’s manager. Following these meeting she agreed that the offensive behavior “did slow down for a couple of weeks.”

In 2006, Simpson contacted Big Lots’ employee hotline and made an anonymous tip concerning her manager’s alleged sexual harassment toward her as well as complaints received from other employees concerning his sexual harassment. In response Big Lots sent a district manager to investigate the allegations. Simpson was on leave when he arrived, never met with the investigator and made no effort to contact him to participate in the investigation. Following the district manager’s investigation, Simpson heard that her manager had been written up for the harassment and his behavior stopped for a while.

Simpson claims that some time late she made another complaint to the store manager concerning her manager’s crude behavior to which he asked Simpson if she wanted him to fire her manager. Simpson responded she did not “want anyone to lose their job no matter who you are,” but that she wanted the issue resolved. Again the Big Lots district manager interviewed several store employees concerning these new allegations. Simpson was out on medical leave at the time, but her co-worker called her at home asking what to do with a notebook in which Simpson had detailing the manager’s alleged misconduct.  Simpson told her, “under no circumstances do you give them the notebook.” Instead, Simpson contacted her attorney on behalf of the two employees and Simpson filed her EEOC charge in late August of 2012. Simpson’s manager submitted his resignation in September 2012. Simpson was properly terminated on February 13, 2013, for failure to return to work at the end of leave.

        Subsequently, Simpson filed a complaint in Federal Court for the Northern District of Alabama alleging a Hostile Work Environment claim. District Judge Inge Johnson found on Big Lots’ motion for summary judgment that a genuine issue of material fact exists as to whether the manager’s endless story-telling, references to women’s breasts and butts, and comments about sex and his private parts constituted objectively hostile or abusive behavior, especially if such comments were directed only at women in the office as Simpson alleged.

          However, the Judge also found that the manager’s reprehensible and repulsive behavior, could not overcome Big Lots’ Faragher-Ellerth defense to defeat a hostile environment claim. The Judge noted that Simpson had conceded in her deposition that every time she made a complaint to the store manager, he arranged a meeting with her and later informed her that he had spoken with the offending manager, who was disciplined on three occasions.

     The Judge ruled on July the 8th that Big Lots made a showing that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that Simpson unreasonably failed to take advantage of any preventive or corrective opportunities it provided. In granting summary judgment in favor of Big Lots on the hostile environment claim, the Judge concluded that the employer had conducted a reasonable investigation in response to Simpson’s allegations, and that investigation is enough to satisfy Big Lots’ responsibility under Title VII. The case is Simpson v. BigLots.

Common Sense Counsel: 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. Also using pickup lines as part of your employee recruiting campaign is never recommended.

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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com and follow on twitter@tommyeden3. 


Wednesday, July 9, 2014

DOT ISSUES DRUG TESTING UPDATES



By: Tommy Eden
The Office of Drug and Alcohol Policy and Compliance with the Office of General Counsel of the U.S. Department of Transportation has recently issued new guidance governing the collection process for substance abuse testing. Collections are sometimes considered a “weak link” in an employer’s DOT drug testing because collectors are usually third parties, and the employer may have more difficulty monitoring and ensuring their compliance.

A new “Q & A” for 49 CFR Part 40, which will take effect this Monday, July 14, includes discussion of the following issues:

*When may a collector give an employee permission to leave a collection site?

*What happens if an employee leaves the collection site before the testing process is complete?

Also, effective July 3, the DOT issued a revised version of its Urine Specimen Collector Guidelines. (The last update before the latest version was on October 1, 2010.) For the most part, the current revisions are non-substantive updates (for example, updated links to websites and removal of effective dates that have already passed). Substantive changes, intended mainly to clarify what actions are “required” as opposed to simply “authorized,” are in italics.

Alabama now ranks #1 as highest painkiller prescribing state, according to a report issued by the Center for Disease Control last week. There are 143 painkiller prescriptions per 100 persons livings in Alabama“Prescription drug overdose is epidemic in the United States.  All too often, and in far too many communities, the treatment is becoming the problem,” said CDC Director Tom Frieden, M.D., M.P.H. “Overdose rates are higher where these drugs are prescribed more frequently.  States and practices where prescribing rates are highest need to take a particularly hard look at ways to reduce the inappropriate prescription of these dangerous drugs.” http://www.cdc.gov/media/releases/2014/p0701-opioid-painkiller.html

Common Sense Counsel:
Following these five tips will help you ensure that your collector is complying with DOT requirements:

  • Use only collectors who can produce a current collector training certificate from a nationally recognized industry association.
  • Make sure that your contract with the collector spells out the terms of your relationship, including procedures that will ensure the integrity of the specimens and the testing process, and an indemnification clause that protects your company in the event of a collector error.
  • Conduct occasional surprise visits to your collection site, and use an audit checklist to catch any errors in site preparation or specimen collection.
  • Make sure that your Medical Review Officer knows to promptly notify you of any collector errors and to order collector retraining when necessary.
  • Periodically engage an independent auditor to test the integrity of your collectors and the processes they follow. In the (hopefully rare) event of collector misconduct – such as accepting bribes to ignore positive test results, substitutions, or adulterations – have the auditor gather conclusive evidence. You can then consider whether to report the collector to the DOT to have them removed from the business.
  • To make sure your safety sensitive drivers are not impaired at work on painkillers, institute an ADA compliant pre-duty disclosure policy with fitness-for-duty follow up by an occupational physician. 

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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com



Thursday, July 3, 2014

Supreme Court's Hidden Gift

By: Tommy Eden 

Ashely Walthour and Kevin Chappell, former window repairs for Chipio Windshield Repair LLC, filed a collective action claiming that Chipio had failed to pay minimum wage and overtime, in violation of the Fair Labor Standards Act (FLSA). After the Federal Court suit in Georgia was filed, Chipio moved to compel arbitration under the Federal Arbitration Act, citing the mandatory arbitration agreements Walthour and Chappell had signed shortly after being hired. The District Court Judge compelled arbitration. These agreements stipulated that all employment disputes were to be resolved exclusively through individual arbitration, including their class action rights.

The 11th Circuit Court of Appeals found in favor of the Arbitrator’s authority to hear the collective action noting, “
the text of the FLSA does not set forth a non-waivable substantive right to collective action.” In the Fall of 2013 the 11th Circuit held in the case of DIRECTV LLC v. John Arndt et al that such arbitration “agreements were worded broadly, encompassing all past, present, and future claims or controversies relating to wages and compensation.”

On Monday in mist of all the hoopla over the Hobby Lobby decision, the Supreme Court in a highly significant decision denied Certiorari in the Chipio Windshield case leaving mandatory arbitration of employment disputes as the sole remedy in the 11th Circuit for those employers who adopt such a program.

Common Sense Counsel: The Chipio case is truly a gift to employers who wish to engage in employment claims related risk reduction. 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 Supreme Court case law favoring alternatives to court litigation, 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. Plaintiff’s attorneys hate these programs for obvious reasons. The best programs have the following components: 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, covering class claims, that will pass court scrutiny; 5) training for all employees on the process; 6) private arbitration panel of former local judges, or AAA Arbitration, 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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com