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Thursday, December 18, 2014

Utility Drug Test Refusal Done Wrong

By: Tommy Eden


Jwaun Ward, an employee of Decatur Utilities, was randomly selected, along with five other employees, to take a drug test. This was the second time during 2012 that Ward had been randomly selected. 

On the morning of his selection, Ward was instructed by his supervisor, in the presence of other employees, to drive to the front office and to "go pee in a cup in front of the work group." Ward testified that he felt "humiliated, embarrassed, and belittled," according to his lawsuit. Ward also gave deposition testimony that  during the previous months of May and June, the same supervisor had said that Ward "was going to be the first n that he fired [for failing] a drug test," and that he was going to make Ward take "four or five" more drug tests before the end of the year in an effort to "kill him with the drug test."

Rather than drive to the front office to take the test, Ward went to the Superintendent’s office and said that he was going home, explaining that he was "not going to entertain his supervisor's request because of the way he asked." Ward then called the Human Resources Manager before leaving the premises and told her about his supervisor's comments. She told Ward that he was selected at random, and that if he refused to take the drug test, then his employment would be terminated. Ward left the premises, according to facts in the Judge's Order.

Ward met with Utility Managers the following morning, to discuss the drug test and offered at that time to be tested. For the first time, Ward stated that he had suffered mistreatment from fellow employees and from his supervisors because of his race. Ward was suspended for refusing the drug test, and the Manager was assigned to investigate his racial allegations.

Ward was later informed during a telephone conversation, that he would be required to complete a drug awareness program in order to retain his employment at Decatur Utilities. Ward refused. The HR Manager later gave deposition testimony that if Ward had taken a later drug test and met with a substance abuse counselor he would not have been fired. Five days later, Ward’s employment with the Utility was terminated. 

On December 15, 2014, a Federal District Judge for the Northern District of Alabama granted summary judgment to the Utility on Ward’s race discrimination claim but found creditable evidence that Ward may have been retaliated against since he offered to take a later drug test but was not allowed to do so. The case is Ward v. Municipal Utilities Board of Decatur, Alabama.

Common Sense Counsel: Consistently following a well drafted DOT compliant public entity drug testing policy is absolutely critical to avoiding these types of adverse outcomes. When an employee refuses to be drug tested that is a “refusal” under DOT regulation and cannot be remedied by a later offer to be tested by the employee. The Utility appears to have simply made the wrong call when faced with a difficult dilemma. 

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, December 12, 2014

Obama's Immigration Actions are Good for Employers, Too

By: Tommy Eden and Will Krasnow

When President Obama announced his Executive Actions On Immigration (to take effect in about 90 days), he said that the changes were intended to “make it easier and faster for high-skilled immigrants, graduates and entrepreneurs to stay and contribute to our economy, as so many business leaders have proposed.”

The President appears to be right. In particular, the proposals that are intended to improve our legal immigration system, and to make it easier to hire and retain professionals and entrepreneurs, seem to be beneficial to employers. Here are the highlights:

1) A larger pool of undocumented individuals will be eligible to receive work authorization.

2) Up to 5 million undocumented individuals will be eligible to receive work authorization as a result of

• expansion of the existing Deferred Action for Childhood Arrivals (“DACA”) program for persons who entered the United States. as children under the age of 16; and

• institution of a new program for parents of U.S. citizens or lawful permanent residents.

3) Other proposals should improve our legal immigration system.

• Visa Modernization – There are unreasonably long waits in many employment categories for applicants to obtain visas to become lawful permanent residents. The appropriate agencies are to look at ways to modernize the visa system, including efforts to ensure that all available visa numbers are captured. Agencies will also consider whether spouses and children of employees should be counted as individual applicants, or whether one visa could cover the entire family.

• Enhancing Options for Foreign Entrepreneurs. This initiative includes liberalizing the rules for national interest waivers that will allow employees to bypass the recruitment of U.S. workers via the PERM (permanent labor certification) process.

• Clarification of “Specialized Knowledge” Applicable to L-1B Visas – The U.S. Citizenship and Immigration Services is expected to adopt a more liberal interpretation of “specialized knowledge.”

• Expanded I-140 Portability – Employees with approved I-140 petitions who are unable to apply for permanent residency because of the unavailability of a visa number, will be allowed the benefits of adjustment of status – that is, employment and travel authorization, and the ability to transfer to a new position or employer in the same occupational classification as the one covered by the I-140 petition or a “similar” one. “Same or similar” also will be clarified to allow greater opportunities for job transfers and promotions.

• STEM (Science, Technology, Engineering and Math) – STEM-based optional practical training will be expanded. Currently, optional practical training is allowed for up to 29 months for U.S. graduates with bachelor’s or higher degrees in STEM fields.

• Spouses of H-1B workers who are in the latter stages of the permanent resident process will be allowed to apply for employment authorization. The proposed rule (announced before the Executive Actions on Immigration) is to be finalized by January 2015.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and Will Krasnow is a partner in Constangy's Boston office. Tommy can be contacted at or 334-246-2901. Blog at with live links.

Wednesday, December 10, 2014

Waiting is Not Working says High Court

By: Tommy Eden

Jesse Busk worked for Integrity Staffing Solutions, Inc., a temporary staffing employer requiring its hourly warehouse workers, who retrieve products from warehouse shelves and packaged them for delivery to customers, to undergo a security screening before leaving the warehouse each day. Amazon mandated the security check to reduce shrinkage from employee theft of merchandise. Sometimes Busk had to wait in line for 25 minutes after he clocked out before the screening was completed.

Busk and several former employees of the company sued alleging that they were entitled to compensation under the Fair Labor Standards Act (FLSA) for the roughly 25 minutes each day that they spent waiting to undergo and undergoing those security screenings.They also alleged that the company could have reduced that time to a de minimis amount by adding screeners or staggering shift terminations. Because the screenings were conducted to prevent employee theft they claimed such were for the sole benefit of the employers and their customers and they should be paid to wait.

The United States District Court in Nevada dismissed the complaint, holding that the screenings were not integral and indispensable to the employees’ principal activities but were instead postliminary and non-compensable. The U. S. Court of Appeals for the Ninth Circuit reversed asserting that post-shift activities that would ordinarily be classified as non-compensable postliminary activities are compensable as integral and indispensable to an employee’s principal activities if the post-shift activities are necessary to the principal work and performed for the employer’s benefit. This decision alarmed similar large warehouse operations nationwide.

This week the United States Supreme Court held unanimously that the time spent waiting to undergo and undergoing security screenings is not compensable post-liminary activities under the FLSA. The Court reasoned that the security screenings at issue are not the principal activities the employees were employed to perform—i.e., the workers were employed not to undergo security screenings but to retrieve products from warehouse shelves and package them for shipment. Nor were the screening “integral and indispensable” to those activities. The Portal-To-Portal Act, which amended the FLSA in 1947, exempts employers from liability for activities that are “preliminary or postliminary” to a worker’s principle tasks.

Common Sense Counsel: FLSA violations are the most common and costly employment lawsuit being brought and employers are paying out millions in settlements and attorney fees. With the FLSA self help to determine if you are in compliance is simply not a legal option and an ounce of prevention with a wage and hour audit is the only risk reduction strategy. The top three most costly violations are: 1) Misclassification of Exempt Employees. 2) Not Counting Every Hour Worked; and 3) Not Calculating Overtime Pay the FLSA Way.

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 and follow on twitter tommyeden3

Friday, December 5, 2014

Final LGBT Non-Discrimination Rule Released

 By: Tommy Eden

The Office of Federal Contract Compliance Programs announced Wednesday that it is issuing a Final Rule implementing President Obama's Executive Order that prohibits federal contractors from discriminating on the bases of sexual orientation and gender identity.

This Final Rule will be effective 120 days after publication in the Federal Register (which has not yet occurred) and will apply to federal contracts entered into or modified on or after that date.

What does the Final Rule change? The EO Clause has been changed to include "sexual orientation" and "gender identity." However, those contractors that incorporate the EO clause by reference will not need to physically alter their subcontracts or purchase orders.

Contractors must notify applicants and employees of their non-discrimination policy by posting the "EEO is the Law" poster. Presumably, the government will be updating this poster to include these two new categories.

Contractors are also obligated to expressly state in job advertisements that all qualified candidates will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin. The Final Rule provides that employers can satisfy this requirement by including that verbiage or simply indicating that the company is an "equal opportunity employer."

Although employees hired outside of the United States are not covered by the regulations, if a contractor is not able to obtain a visa of entry for an employee or potential employee to a country in which it is doing business, the regulations require the contractor to notify both the OFCCP and the U.S. Department of State if the contractor believes that the refusal of the visa is because of the individual's protected characteristic. This requirement now applies to sexual orientation and gender identity status.

The section of the regulations regarding Placement Goals in AAPs has also been updated. Contractors are prohibited from extending preferences on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin due to specific placement goals.

Common Sense Counsel: The Final Rule simply adds sexual orientation and gender identity to the sections of the regulation where the other protected categories are listed, so the impact on federal contractors is limited. However, contractors should begin the process of determining whether and when they need to do the following:

• Update the EO Clause in subcontracts and purchase orders;

• Amend the EEO and AA Handbook policy to include sexual orientation and gender identity;

• Obtain new "EEO is the Law" posters;

• Modify their EEO tagline on job solicitations;

 Train appropriate personnel on the new protections; and

 Deal with “the restroom issue” now so it will not become a distraction.

In addition, the OFCCP has issued FAQs regarding its interpretation of the Final Rule. These will probably be updated periodically as contractors pose questions to the OFCCP.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and Cary Crotty ( is a member of Constangy's Strategic Affirmative Action Practice Group Tommy can be contacted at or 334-246-2901. Blog at with live links.

Monday, December 1, 2014

Headscarfs and Hand Scanners on Court’s Gift List

By: Tommy Eden

Abercrombie & Fitch’s religious headscarf battle headed to the United States Supreme Court in early October. Its stringent “Look Policy” dress code has come under fire in several cases from employees who say they were disqualified from getting, or keeping, a job because they wanted to wear a hijab, or headscarf. 

The Equal Employment Opportunity Commission (EEOC) filled suit on behalf of Samantha Elauf, a Muslim woman who was denied a job as a salesperson at an Abercrombie Kids store in Tulsa, Oklahoma, because she wore a headscarf at her job interview. However, Elauf didn't specifically say that she wanted a religious accommodation to wear it while working. A Federal District Court ruled in her favor, but an appeals court reversed the decision, holding that Elauf had to explicitly ask for religious accommodations. Look for Elauf to get her scarf back by Christmas.

In another case, Consolidation Coal Company in West Virginia installed an attendance tracking system for payroll purposes at their Robinson Run Mine that requires employees to electronically sign-in using a biometric hand scanner for purposes of identification and time clock tracking.
Employee Beverly Butcher is an Evangelical Christian with 35 years of service at the Mine. When faced with the biometric logging in, he meet with his manager and stated that he had a genuinely held religious belief that would not permit him to submit to biometric hand scanning providing his manager with a letter that he wrote discussing his genuinely held religious beliefs about the relationship between hand scanning technology and the Mark of the Beast and antichrist discussed in the Bible. He requested an exemption from hand scanning because of his religious belief.
At a later meeting, his managers proposed that Butcher should submit to hand scanning of his left hand turned palm up rather than his right hand. Butcher rejected their offer stating that he is prohibited by his religion from submitting to scanning of either hand. The managers declined to accommodate Butcher’s request to be exempted from the biometric sign-in telling him that he would be subject to disciplinary action if he refused to use the biometric hand scanning system.
Butcher promptly retired and specifically informed his managers that he was retiring involuntarily, telling them that he was retiring under protest and felt that he had no choice but to retire because of their refusal to grant an exemption from biometric hand scanning. At least two persons employed at the Mine had been permitted exemptions from biometric hand scanning due to missing fingers.
Last month the EEOC filed a Motion for Summary Judgment seeking a judgment for religious discrimination in its suit filed on behalf of filed Butcher in West Virginia U.S. District Court. Consolidation Coal last week urged the court to reject the EEOC's bid for summary judgment and instead grant judgment in its favor. Good chance Butcher will win this Bible sword drill.
Common Sense Counsel: A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his/her religion and still work. An employer might accommodate an employee's religious beliefs or practices by allowing tasteful religious attire, flexible scheduling, voluntary swaps or modification of login requirements. All an employee needs is a strongly held religious belief to make such a request. I do not think the employer has a prayer in either case.
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