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Tuesday, December 29, 2015

The Arbitration Trump Card

By: Thomas Eden

Amy Imburgia filed a class action lawsuit against DIRECTV, Inc. (DIRECTV), claiming it had improperly charged early termination fees to its customers. In 2011, the U.S. Supreme Court decided AT&T Mobility LLC v. Concepcion, in which the Court held that the Federal Arbitration Act (Act) preempted California precedent that had previously held that, in certain circumstances, arbitration clauses in customer agreements were unenforceable. Less than one month after that decision, DIRECTV moved to stay or dismiss the case and compel arbitration in Amy’s case under the Act.The California Court of Appeal refused to enforce the arbitration provision by holding that the language of the customer agreement subjected the arbitration clause to California law. DIRECTV appealed the case to the United States Supreme Court.

In the days leading up to Christmas the High Court found that the refusal to enforce the arbitration provision was preempted by the Federal Arbitration Act. Specifically, in DIRECTV v. Imburgia it concluded that California law “does not give due regard…to the federal policy favoring arbitration.” The High Court ordered the California Court to enforce the arbitration agreement on remand.

The decision also impacts employment arbitration agreements based upon the 2014, 11th Circuit Court of Appeals decision of Walthour v. Chipio Windshield Repair LLC. In that case Walthour 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 had signed shortly after being hired. The District Court Judge compelled arbitration. His agreement stipulated that all employment disputes were to be resolved exclusively through individual arbitration, including class action rights. The 11th Circuit affirmed and the High Court refused to overturn the case.

Common Sense Counsel: The Imburgia case is truly a Christmas gift to employers who wish to engage in employment claims related risk reduction. Such an arbitration program can trump EEOC lawsuits, FLSA wage suits, retaliatory discharge claims - you name your worst employment nightmare. In light of this 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 & Prophete, 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

Tuesday, December 22, 2015

FMCSA to Lower Controlled Substances Random Testing Rate for Calendar Year 2016


By: Thomas Eden

The Federal Motor Carrier Safety Administration (FMCSA) on December 22, 2015 announced that it will lower the random testing rate for controlled substances from the current 50 percent to 25 percent for the upcoming calendar year, effective January 1, 2016. FMCSA conducts a random survey to ensure compliance with the set testing rates, known as the Management Information System (MIS) or MIS survey. According to federal regulations, when the data received in the MIS for two consecutive calendar years indicate that the positive rate for controlled substances is less than one percent, the FMCSA Administrator has the discretion to lower the minimum annual testing rate. While the MIS survey resulted in a positive rate of less than one percent for the 2011 and 2012 testing years, the Acting Administrator chose to maintain the 50 percent rate for another year. The 2013 testing year also showed a positive rate of less than one percent, so after three years, the Acting Administrator approved a lower testing rate. If at any time the positive rate for controlled substances exceeds one percent, the testing rate will revert back to 50 percent. For a copy of the announcement, click here. To verify the current random testing rates of FMCSA and other agencies within the Department of Transportation, click here.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, 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


Record $4 Million to Settle EEOC Race Bias Claims

By: Thomas Eden


Stanley Beaty, an African-American, was employed by Hillshire Brands at its Paris, Texas plant when he complained of racial harassment. He claimed in this federal court complaint that he and other black employees were subjected to racial slurs from supervisors and co-workers, including frequent use of the “N” word and “boy” when speaking to and/or about African-American employees. Beaty said he also complained of racist graffiti written on the bathroom walls at the plant. According to the EEOC lawsuit, several other employees complained to management about the on-going racially offensive graffiti, but plant management failed to take prompt and effective remedial measures to prevent and correct the discriminatory conduct.

Hillshire brands, formerly known as Sara Lee Corporation, was accused by the EEOC of permitting such discriminatory practices from August 2001 through November 2011 when the plant in Paris closed.

Rather than go to trial against the 74 workers witnesses, Hillshire Brands agreed on Friday to a consent decree to pay $4 million to settle claims of 74 workers at the now closed plant that the company subjected a class of black employees to a racially hostile work environment. This was the largest settlement ever for the U.S. Equal Employment Opportunity Commission's Dallas office.

The consent decree requires Hillshire to implement anti-racism training and provide a way for employees to confidentiality report instances of harassment, discrimination, and retaliation, as well as a point-of-contact for those who feel they have been treated improperly. Hillshire is also required to punish workers with suspensions and even termination who are found "by reasonable evidence" to have engaged in racial bias or behavior related to it.

Common Sense Counsel: Race Discrimination is one of the EEOC Litigation Hot Buttons for 2016. No worker, regardless of race, gender, or other discriminatory factors, should ever have to endure harassment in order to earn a paycheck. As this case proves, the EEOC continues in its full press litigation mode. Harassment claims, racial and otherwise, are by far the most costly and destructive to the fabric of any business. The 2016 policy upgrade, training, and internal investigations listed in this consent decree are exactly what every Alabama employer should do before they become a story headline.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, 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, December 17, 2015

Despite “Legal Pot” Laws, Employers Still Hanging Tough


By: Thomas Eden

What effect are liberalized marijuana laws having on employer drug policies? Maybe not as much as you’d think.

The Society for Human Resources Management just came out with survey of employer marijuana policies in states that have legalized it in some degree.. Here are some highlights from the SHRM study:

Of 224 employers who have operations in jurisdictions that have legalized some form of marijuana use as well as jurisdictions where marijuana is still illegal, 94 percent said that they used the same policy at all locations.

Of the 175 employers in states that have legal marijuana for medical purposes only (“medical-only”), 80 percent said they had not changed their policies since the laws changed.

Of the 407 employers in states that have legalized recreational as well as medical marijuana use (“medical-recreational), 69 percent said they had not changed their policies in response to changes in the law.

Of the 128 employers who had changed their policies since marijuana was legalized, 37 percent said that their revised policies were now more restrictive on marijuana use than their prior policies. Twelve percent were less restrictive, 30 percent “clarified” their existing policies, 12 percent reported no change, and 10 percent were “other.”

Regarding exceptions to their no-drug policies for marijuana use, 73 percent of 166 employers in “medical-only” states reported that they are continuing to ban all use of marijuana. Only 22 percent made exceptions for medical use. In “medical-recreational” jurisdictions, 82 percent of 397 employers reported that they continue to ban all use of marijuana, and 11 percent made exceptions for medical reasons.

Regarding whether employers intended to change their drug policies in light of legalization of marijuana, 69 percent of 117 employers in “medical-only” states said that they had no plans to change. Twenty-one percent intended to make clarifications. Five percent planned to make their policies more restrictive, and five percent planned to make their policies “more accommodating.” In “medical-recreational” jurisdictions, 83 percent reported that they planned no changes, 15 percent said that they planned to “clarify,” 2 percent said that they planned to become more restrictive, and 1 percent said that they planned to be more accommodating.

SURVEY METHODOLOGY

The survey consisted of random samplings of Human Resources professionals in jurisdictions that (1) legalized medical marijuana but not recreational, and (2) legalized both medical and recreational use of marijuana.

“Medical-only” states: Arizona, California, Connecticut, Delaware, Hawaii, Illinois, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, and Vermont.

“Medical-recreational” jurisdictions: Alaska, Colorado, Oregon, Washington, and the District of Columbia.

Tommy Eden is a partner working out of the Constangy, Smith & Prophete, 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. I wish to thank my partner Robin Shea in our Winston-Salem, NC for her help with this column. Tommy can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com with hyperlinks study.

Monday, December 7, 2015

Counting the Cost of Toxic Employees


By: Thomas Eden

What impact does one highly toxic employee have on your workplace? A toxic employee is one who engages in behavior that is harmful to your workplace. On the mild side costs include: lost customers, lower employee morale, and higher turnover. On the high side are fatal workplace shootings. Toxic workers can also include those who harass others, engage in fraud, falsify documents, commit employer theft, commit workplace violence and engage in general workplace misconduct. Even more frightening is when their toxicity spills over and infects other workers.

According to a November 2015 article in the Harvard Business Review, where approximately 50,000 workers across 11 firms were surveyed, toxic workers were found to be so damaging to the workplace environment that avoiding them could increase work performance and provide more benefits than finding and retaining a superstar worker. The authors found that workers in the top 1% of work productivity resulted in $5303 of additional revenue, while avoiding toxic workers could save an estimated $12,489 in reduced turnover, regulatory penalties, and potential litigation fees. They determined that the two top characteristics exhibited by toxic workers were excessive overconfidence, overestimating one's own abilities, and being a workplace bully.

The study found that the degree of “caring for others” was predictive of the choices one makes that affect others. Specifically, those who showed little concern for others’ interest were found less likely to refrain from damaging others and their property, and thus to engage in toxic workplace behavior. Those people were classified as self-regarding. There was also found to be a correlation with increased on-the-job hazard rates and those who over-reported their skill level before they start the job. Greater overconfidence also typically resulted in a greater chance of being terminated for being a toxic worker. Of course, some toxic employees are highly productive which is the reason they avoid termination in spite of their toxicity.

Also, it was found that toxic workers seemed to induce others to be toxic, and consequently less productive on the job. While some workers were found to have pre-existing traits that predicted they would be toxic workers, it was also found that workers environments substantially influenced their propensity to become a toxic worker. So managing toxic workers is not simply a matter of screening them out, but also minding the work environment by adoption of a set of commonly established values. Managing by values is what Forbes finds that the top 100 Best Places to Work in America do best.

Common Sense Counsel: any question as to what you should start planning to do with your toxic employees in 2016? If you are that toxic employee, commit to get over your "stinkin thinking" by daily showing, and voicing, gratitude for the job opportunity you are currently enjoying by rendering more and better service no matter the task.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, 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 with link to Harvard Business Review article.

Friday, December 4, 2015

Overtime Exemption Rule Coming July 2016


By: Thomas Eden

The new overtime white-collar exemption rule will be issued July 2016, according to the U.S. Department of Labor’s fall 2015 regulatory agenda, which the Office of Management and Budget published just before Thanksgiving.

The DOL’s proposed rule, issued on June 30, 2015 would raise the salary threshold for exemption from the current $23,660 to $50,440. The Department proposes to update the regulations governing which executive, administrative, and professional employees (white collar workers) are entitled to the Fair Labor Standards Act’s minimum wage and overtime pay protections. Key provisions of the proposed rule include: (1) setting the standard salary level required for exemption at the 40th percentile of weekly earnings for full-time salaried workers (projected to be $970 per week, or $50,440 annually, in 2016); (2) increasing the total annual compensation requirement needed to exempt highly compensated employees to the annualized value of the 90th percentile of weekly earnings of full-time salaried workers ($122,148 annually); and (3) establishing a mechanism for automatically updating the salary and compensation levels going forward to ensure that they will continue to provide a useful and effective test for exemption. The Department last updated these regulations in 2004, which, among other items, set the standard salary level at not less than $455 per week.

Common Sense Counsel: This Proposed Regulation will be sticker shock for most manufacturing, retail, fast food and millions of small business employers. Follow these 7 steps for some relief and solutions: 1) take a deep breath and let it out slowly as a stress relief exercise; 2) take the Draft Exemption Trial Work Sheet Test and your current job description (better have one) for each of your current salaried exempt employees and see if they truly pass one of the five exempt employee test; 3) for those previous supervisors who are now newly christened hourly employees who do not pass the test, make them a team leader of some kind with an hourly wage rate; 4) for those hourly employees who will work 50 hours a week, consider a Fluctuating Work Week or Below written agreement to lower your overhead cost; 5) for those who do meet the exempt test, and you still want to keep them salaried, then you will have to give them a raise to 50,440 by the second quarter of 2016 and redraft their job description (in-fact you should redraft most of your job descriptions by the end of 2015); 6)  update your pay reporting system and handbook to help you keep day-by-day control of excessive overtime costs; and most important 7) come up with creative ways to engage and incentivize your hourly employees to think like owners.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, 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 with Links to worksheet and regulations on Blog. Many thanks to Ellen Kearns, partner at our office in Boston, for her help on this posting. You can send Tommy an email and request free access to his BOX account with various compliance resources on this topic.

Wednesday, November 25, 2015

Be Thankful You’re Not An Employment Law Turkey


By: Thomas Eden

Well, it’s that time of year again – what are you thankful for?

I’m thankful that I’m not the person who writes help-wanted ads for Vestra Inet of Toronto. The company came under well-deserved fire for putting the following in a help-wanted ad for a writer/SEO specialist: “Please note that the Position requires filling in the responsibilities [sic] of a receptionist, so female candidates are preferred.” (Emphasis added.) After the usual cyber-indignation was expressed, the company took down the ad and made kind of a non-apology apology.

I’m thankful that I am not the HR manager of these two people. A female, known only as “Christina,” announced her pregnancy on Facebook. How sweet. Then a male co-worker decided to offer his own greeting, which got more than 100 “likes”:

“Congratulations, Christina, I know you and Mark will be very happy. I hope that now that you’re pregnant, . . . you stop coming into my office offering sexual favors, just because I drunkenly slept with you at the retreat. It was a mistake. A huge mistake. . . . So while I congratulate you for bringing a child onto this earth, I also pray that this ends your psychotic, one-sided love affair with me. I also hope that your husband is smart enough to know that IT COULD BE ANYONE’S KID.”

This was the part that I could repeat. It gets worse. Was this a prank? If so, it wasn’t very nice. Christina, meanwhile, has reportedly taken down her Facebook profile.

I’m thankful that I am not a kid in this woman’s class. A substitute teacher assigned to Washington Elementary school in Oklahoma was arrested for a DWI on the way to school one morning. She appeared this week on Dr. Phil to claim that she was not intoxicated (even though she was on video admitting to the cops that she’d been drinking). Dr. Phil’s crew caught her on camera at the hotel on the morning of the show drinking a glass of wine before her interview. Oops. “Oh, you said NINE o’clock. I misunderstood.”

OK, now here are some things I really am thankful for . . .

  • I’m thankful for my family, my friends, and my firm.
  •  I’m thankful for you: my loyal column readers, commenters, email correspondents, and those who stop me and say, “Thank you!” I hope you’ll stay with me for another year and let me continue to teach you how not to become an Employment Law Tukey!
Tommy Eden is a partner working out of the Constangy, Smith & Prophete, 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. I wish to thank my partner Robin Shea in our Winston-Salem, NC for her help with this column. Tommy can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com with hyperlinks to videos and commentary for the stories above. 

Friday, November 20, 2015

UAW Gets Vote on “micro-unit” at VW-Chattanooga


Constangy Client Bulletin #568

November 19, 2015


The UAW lost one battle, but it may win another.
The National Labor Relations Board granted yesterday the United Auto Workers’ petition for a union election at the Volkswagen facility in Chattanooga, Tennessee. The election will be in a “micro-unit” of skilled tradesmen at the plant and will take place on December 3-4, only two weeks from now.
According to the Associated Press/ABC News, the voting unit will consist of approximately 162 employees who maintain and repair manufacturing robots. This is approximately 12 percent of the facility’s total blue-collar workforce.
VW unsuccessfully opposed the “micro-unit,” contending that the UAW should not be able to separately bargain on behalf of the small unit and arguing that the timing was suspect, in light of the company’s recent troubles related to diesel-fuel emissions tests.
Because of their relatively high level of skill, maintenance employees are not easily replaced in the event of a strike. For this reason, if the UAW is successful, the skilled-trades unit is expected to have significant leverage against VW in bargaining.
We’ve been covering the situation at VW-Chattanooga extensively and will keep you up to date on the latest developments, including the election results.
Prior Constangy coverage of VW-Chattanooga (from newest to oldest):
For a printer-friendly copy, click here.

Tommy Eden is a partner working out of the Constangy, Smith & Prophete, 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. The above information was taken from a more extensive Client Alert published by his law firm’s OSHA Practice Group. Tommy can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Friday, November 13, 2015

OSHA Fines Predicted to Double in 2016

By: Thomas Eden

Buried in the fine print of the recent budget agreement between Congress and the White House, and seemingly slipped in at the last minute with no one claiming responsibility for the change, the Occupational Safety and Health Administration now has authority to raise penalties by about 82 percent.

The Federal Civil Penalties Inflation Adjustment Act amends a 1990 law to provide a “catch-up” adjustment that allows OSHA to raise penalties by the amount of inflation that has occurred since 1990. OSHA had previously been exempted from the inflation adjustment provision of the 1990 law, but can now raise the maximum penalty amounts for “Other than Serious,” “Serious,” “Repeat,” and “Willful” violations. For example, although the OSH Act provides for a maximum penalty of $7,000 for “Other than Serious” or “Serious” violations, under the new law, maximum penalties for these types of violations could be increased to about $12,744. For “Repeat” and “Willful” violations, the current maximum penalty of $70,000 could be increased to $125,438.

The law requires that these penalty changes be announced by the publication of an interim final rule by July 1, 2016, with the adjusted penalties going into effect by August 1, 2016. These changes will be made through new regulations, with opportunity for public comment.

At first. After the one-time “catch-up” to capture the amount of inflation that has occurred since 1990, OSHA can annually increase the maximum penalties for each type of violation consistent with the inflation rate for the prior fiscal year, as determined by the federal government’s Consumer Price Index.

Common Sense Counsel: No one is immune from OSHA citations. With this year’s new requirement to report to OSHA all admissions to a hospital, amputations, and loss of an eye within 24 hours, and with 37 percent of those reports resulting in on-site inspections, the stakes have clearly been raised. Although OSHA’s announced goal is to ensure that employers provide a safe workplace, citations are typically issued as a result of failing to comply with the provisions of OSHA Standards.

Having a safe workplace does not necessarily mean that you have complied with all of the OSHA Standards that are applicable in your workplace. Enhanced enforcement as a result of the last seven years of the present OSHA Administration has become the norm, including “regulation by shaming” through press releases issued when high-penalty cases occur, and now the increased penalties about to go into effect. In this climate, we strongly encourage you to make sure that your safety programs and physical site conditions are fully compliant.

Tommy Eden is a partner working out of the Constangy, Smith & Prophete, 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. The above information was taken from a more extensive Client Alert published by his law firm’s OSHA Practice Group. Tommy can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Wednesday, November 4, 2015

Unions Going to Pot


By Thomas Eden

Medical and recreational marijuana sales are increasingly attracting the interest of union organizers. The Green Rush has caused unions such as the United Food and Commercial Workers Union (UFCW) to post notices on their websites about contracts ratified with medical cannabis companies in 2015 and other organizing efforts:

•  Union members in Oregon, represented by UFCW Local 555, ratified a contract with Stoney Brothers, a marijuana dispensary in Portland, the UFCW announced in July. The contract includes starting wages that range from $15 per hour to $34 per hour.
•  In Washington state, members of UFCW Local 367 ratified a three-year contract with the Cannabis Club Collective for 10 employees, the local announced in June. The collective is a medical marijuana dispensary in Tacoma that seeking three medical marijuana-related licenses in Maryland.
•  In California, members of UFCW Local 5 ratified their first contract with Bhang Chocolate, a medically infused chocolate company in Oakland.
• In February, UFCW Local 1189 members ratified their first contract with Minnesota Medical Solutions LLC, a cannabis company based in Edina, Minn.
• In December 2014, UFCW Local 152 in New Jersey filed an unfair labor practice charge with the National Labor Relations Board's Region 4 office in Philadelphia against Compassionate Care Foundation, a medical marijuana dispensary in Egg Harbor Township, N.J., alleging that it retaliated and discriminated against 11 employees to block their organizing efforts. The NLRB has not yet reported a resolution of the charge.

Some call marijuana the fastest growing industry in America. In 2014, the industry expanding by 74 percent to $2.7 billion in combined retail and wholesale sales, based on a “State of Marijuana Markets” industry report.

The Drug Enforcement Agency still categorizes marijuana as a Schedule 1 controlled substance, which means the federal government considers it to be dangerous with no medical use and high potential for abuse. Laws are now in effect in 25 states and the District of Columbia allowing individuals to use marijuana, primarily for medicinal purposes. In the District of Columbia and four states—Alaska, Colorado, Oregon and Washington—the use of marijuana for both medical and recreational purposes is legal. In Ohio of Tuesday voters soundly rejected a bit to allow medical and recreational marijuana sales.

Common Sense Counsel: The wild west of marijuana sales is attracting the union organizers who see a group of growers, dispensaries and candy makers cashing in on the green rush and want their own fair share of green in the form of increased union dues.  These owners have little to no understanding of how manipulative and controlling a union business agent can be and may well see their own business enterprise eventually go up in smoke. Part of that non-caring unconcerned impairing effect of marijuana use the unions are banking on.

Tommy Eden is a partner working out of the Constangy, Smith & Prophete, 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

Friday, October 30, 2015

Top 10 EEOC Litigation Hot Buttons

 
EEOC General Counsel David Lopez

By: Robin Shea,
Constangy Partner in Winston-Salem, North Carolina

This information is a summary of a more extensive blog post by my law partner Robin Shea who attended a talk by the EEOC General Counsel David Lopez who provided this information with permission for her to share. Top 10 in reverse order:

10. Racial harassment. The EEOC had scored some big wins in this area, generally when the racially offensive behavior was blatant. “Juries don’t like this kind of behavior,” he said, even in parts of the country that you might expect to be more “red” than “blue.”

9. Use of background screens in hiring. The agency won a big settlement in its criminal background check lawsuit against BMW and the agency had “started a conversation” about the use of this information, noting the growing number of states that have adopted “ban-the-box” legislation.

8. Sex discrimination in hiring. The agency is aggressively going after claims of discrimination in the hiring process in heavy manufacturing environments, where women were rejected for positions based on the belief that they could not handle the physical requirements of the job.

7. Preservation of access to the legal system, aka retaliation. The EEOC was winning about 70 percent of its jury trials on retaliation claims.

6. Immigrant/migrant/vulnerable workers. Mr. Lopez spoke of the EEOC’s desire to protect workers “living in the shadows,” and noted that some employers believe they can evade the law because of linguistic and cultural barriers.

5. Americans with Disabilities Act/reasonable accommodation. Mr. Lopez spent most of this topic talking about the EEOC v. Ford Motor Company telecommuting case involving an employee with severe irritable bowel syndrome.

4. LGBT rights. Mr. Lopez said that the EEOC’s position is that sexual orientation discrimination always violates Title VII, and also spoke on the issue of bathrooms and transgender individuals.

3. Pregnancy. This is obviously a very hot area after the Young v. UPS case. Mr. Lopez said that many employers (smaller ones) still don’t know that “Yes, pregnancy discrimination is against the law,” and the Young case was a “game-changer,” and will result in more jury trials.

2. Conciliation requirement. Mr. Lopez said that after the EEOC won the Mach Mining case at the Seventh Circuit (which said that the courts had no authority to review the EEOC’s conciliation efforts). The victory for the EEOC, though, was that if the EEOC doesn’t fulfill its obligations, the court just tells the EEOC to go back and conciliate rather than dismissing the lawsuit.

1. Religious accommodation. “This is number one in my heart,” Mr. Lopez said. He was talking about Samantha Elauf, in the EEOC’s case against Abercrombie & Fitch.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and Robin Shea is in the firm's Winston Salem, NC office. Tommy can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com with link to www.constangy.com full blog post by Robin Shea.

Thursday, October 22, 2015

Lactating Mother’s Revenge


By Thomas Eden

Stephanie Hick was hired in 2009 by the Tuscaloosa Police Department as a patrol officer on the West Alabama Narcotics Squad and worked temporarily as an undercover agent. Hicks learned that she was pregnant on January 6, 2012, and informed her Captain and asked what the policies were for pregnant employees. She was informed that no policies were in place for pregnant employees and the Chief stated that it was at the discretion of her supervisor, as reported in a Federal Judges Order.

On August 8, 2012, before going off on leave, Hicks received her annual evaluation and her overall performance was evaluated as "exceeds expectations." Hicks then took 12 weeks of FMLA beginning mid August 2012, for the birth of her child and on November 26, 2012 returned to duty.

Within an hour of beginning her first day back at work, Hicks was called into the Captain’s office to speak with him and a Sergeant, where she was told that she was being written up in the form of an "informal counseling" for allowing her vehicle to go 1200 miles over the limit for recommended oil changes without changing the oil and for continuing to obtain multiple warrants for individual defendants.

Hicks also discussed with the Captain and Sergeant in this same meeting that she was breastfeeding her new child. The Captain informed Hicks that the police station did not have a pumping area similar to the lactation rooms at City Hall. Hicks asked if she could use the records room to express breast milk, but the Captain indicated that Hicks should use the locker room.

After the meeting, Hicks overheard the Captain and Sergeant discussing wanting to "get rid of that little bitch" and that they would find "any way" they could to do so, along with other more colorful references to Hicks.

Reluctantly, Hicks expressed breast milk in the police locker room at work roughly twice a day, and every time Hicks expressed breast milk at work, someone entered the locker room.

Hicks was reassigned and demoted to a less desirable unit in December 2012, after only six days back on the job. She was also required to be on patrol and to wear a bullet-proof vest. On her doctor's orders, Hicks requested a desk assignment because wearing the vest would “impede milk production or cause infection.” Her request was denied and she was given the choice of wearing a larger vest or working without one, the Judge wrote.

Hicks resigned in January 2013, and filed suit against the City under Title VII of the 1964 Civil Rights Act, the Family and Medical Leave Act and state law. A Federal Magistrate Judge in the Northern District of Alabama on Monday ruled her allegations sufficiently stated a triable claim to submit to a jury on pregnancy bias, leave interference, and constructive discharge claims. The “fact that the plaintiff could ‘work-around' the fact that she was not provided a private place to pump [breast milk] at her place of work does not absolve the defendant of its failure to provide her with such a location, as required”, the Judge noted.

Common Sense Counsel: It's unlawful to take adverse employment actions against an employee because she insists on her right to take a break and lactate or for expressing breast milk at work. The Judge’s 45 page opinion is a trail of facts on how to botch a female’s return from pregnancy leave. And with most adverse employment decisions, bad timing is the mother’s milk upon which substantial verdicts rest.

Friday, October 16, 2015

The Devil Made Me Do It

                                         

By Thomas Eden

CorpCar is a limousine service company in Houston, Texas who employed Homer Randle as a chauffeur and James Henry as a chauffeur and trainer. In the spring of 2009, various African-American CorpCar employees asked for time off for June 19th, known as "Emancipation Day" or "Juneteenth"—a holiday officially recognized by the State of Texas that commemorates the 1865 announcement in Texas of the abolition of slavery. Approximately 75% of CorpCar's chauffeurs were African-American.


CorpCar scheduled multiple safety meetings for June 18th, 19th, and 20th and required their employees to attend at least one of the meetings. Some of CorpCar's employees expressed disappointment at the scheduling of the meetings on and around the Juneteenth holiday. CorpCar's CEO hired a singing telegram to perform, in costume, at the mandatory meetings.


To the surprise of the employees in attendance, a white woman in a black gorilla suit entered the meeting. The door was closed behind her and a manager stood as if to guard the exit. The woman in the gorilla suit sang, danced, touched employees, and sat in their laps. She did Tarzan yells and repeatedly referred in a suggestive manner to "big black lips," "big black butt," and bananas. This went on for approximately ten minutes while the managers were all seen laughing as a CorpCar employee videoed the performance, later posting it online to YouTube.


The woman in the gorilla suit specifically directed part of her performance at Henry as she called him by name and started approaching him while the manager, who was also videoing with his cell phone, leaned in to Henry and stated, "Okay. Here's your Juneteenth." The performer then said to Henry, "James, are you ready for this? Here's your Juneteenth. Oh, these nice big black hairy lips. Don't you want some? Oh, that nice banana in your pants. You could have worked for La Bare's. Oh, don't you want to make me scream." Management explained that the gorilla performance was intended to raise morale and lighten the mood.


A federal court jury later found for Plaintiffs James Henry and Homer Randle on their Title VII hostile work environment claims against CorpCar and also found for Henry on his Title VII retaliation claim, awarding them approximately $200,000 (mostly punitive damages) and the judge approved approximately  $125,000 in attorney fees. The United States Fifth Circuit Court of Appeals in January 2015 affirmed the award.


Common Sense Counsel:  You may recall the famous line by comedian Flip Wilson “The Devil Made Me Do It” as he dressed up as Geraldine Jones, whose boyfriend was “killer” (find it on YouTube).  Learn from this real case that humor at the expense of a protected minority can be an expense and painful laugh. The only thing funnier is that CorpCar attempted to appeal the case to the United States Supreme Court and its appeal was denied.


Tommy Eden is a partner working out of the Constangy, Smith & Prophete, 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

Saturday, October 10, 2015

Mary Jane Has Come Along Way Baby

By Tommy Eden

19 years after voters made California the first state in the nation to legalize the medical use of marijuana, Governor Jerry Brown on Friday October 9, 2015 signed a package of 3 bills to regulate the California medicinal-cannabis industry: Assembly Bill 266, Assembly Bill 243 and Senate Bill 643. In 1996 California voters approved Proposition 215, the law that made it legal for doctors to recommend pot to their patients.

The stated purpose of the legislation known as the Medical Marijuana Regulation and Safety Act establishes the Bureau of Medical Marijuana Regulation along with comprehensive regulations in California for licensing, taxation, quality control, shipping, product packaging and pesticide standards. The laws are scheduled to go into effect in 2018. It is highly anticipated that one or more measures to legalize the recreational use of marijuana will be on the 2016 California ballot.

Common Sense Counsel: So what should an employer who has employees assigned to work in a medical marijuana State like California do? Consider these 7 Steps an employer can take to successfully walk the workplace marijuana tightrope and keep your workplace from going up in smoke:

1. Understand the laws on Medical and Recreational Marijuana that are specific to states where employees report for duty;
2. Adopt a legally vetted pre-duty prescription medication and impairing effects substances safety policy;
3. Update employee job descriptions to cover critical safety sensitive issues;
4. Adopt a handbook policy on reasonable accommodations in those more difficult states and situations;
5. Let employees know your stance on Medical and Recreational Marijuana use;
6. Update your drug-free workplace policy and forms; and
7. Conduct Supervisor Reasonable Suspicion Drug and Alcohol Training and Employee Awareness sessions with a specific emphasis on the workplace dangers of Marijuana use and misuse.

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, October 9, 2015

Marijuana Growers Dirty Secret

By Tommy Eden

In what I believe to be the first case of its type in the United States, Flores, a Colorado recreational marijuana user, and Larravee, a medical marijuana user, filed a purported class action in Colorado state court against LivWell, Inc., a large grower and distributor of recreational and medical marijuana in Colorado.  They allege that LivWell treated its marijuana crop with Eagle 20, a fungicide which was not on the Colorado Department of Agriculture's list of approved pesticides or fungicides at the time of its use. 

Eagle 20 is systemic and as such even though the marijuana may test negative the chemical is inside the cells of the plant.  When burned, Eagle 20 breaks down and releases hydrogen cyanide, a dangerous poison.  Their Complaint alleges claims for breach of contract, breach of the implied covenant of good faith and fair dealing, breach of express warranty, breach of implied warranty for fitness for a particular purpose, breach of implied warranty of merchantability, fraud by misrepresentation and omission, unjust enrichment and civil conspiracy. 

Flores and Larravee allegedly suffered damages in the form of monies overpaid for marijuana that was worth less than it otherwise should have been had the marijuana not been treated with Eagle 20.  Significantly, there is no allegation that either named plaintiff suffered physical injury.

LivWell was one of a number of growers whose marijuana plants were quarantined by the Denver Department of Environmental Health in March and April over concerns that they were treated with pesticides.  City Health Officials later released the plants after tests showed allowable levels of chemicals.  Because marijuana is still illegal at the federal level, the federal government has not provided any guidance on which pesticides or fungicides can be labeled for marijuana use.  The lack of any physical injury to the named plaintiffs likely accounts for the fact that they chose to pursue contract rather than tort claims. The case is Flores v. LivWell, Inc. 2015-CV-33528 (District Court, Denver County, Colorado)

Common Sense Counsel: as I commented in my most recent article concerning marijuana, smoking it is evidence of a special kind of stupid. Now I am giving you additional ammunition to share with your workers, family and friends as to why marijuana use may be particularly hazardous to their health.  The user is basically smoking a poison found inside the plant cells. They don't call it weed for nothing. Hopefully your warning message will not go up in smoke.


Tommy Eden is a partner working out of the Constangy, Smith & Prophete, 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 I wish thank Bill Nelson who practices law in Colorado Springs, Colorado with Lewis Roca Rothgerber LLP for bringing this case to my attention and helping me draft this column.

Friday, October 2, 2015

Caught with His Pants Down Justifies Termination



By: Thomas Eden

In October 2010 Horizon's Human Resources Manager in Puerto Rico, received an anonymous e-mail alleging that Vladimir Pérez had indecently exposed himself. Attached to the e-mail was a photograph depicting a man from the waist down fully exposing his lower-torso. The female manager also received what was purported to be the top half of the same photograph. That image depicted a man's upper torso and face, identifiable as Pérez. It appeared from the background that the photograph must have been taken in the dock's Marine Building, but was likely a year old. 

When confronted, Pérez admitted that the upper-torso photograph was of him, but denied that the lower-torso photograph depicted him. Horizon placed Pérez on paid administrative leave following the meeting. 

Over the next ten days, a manager interviewed several of Pérez's co-workers about the photographs. One co-worker admitted to taking both photographs and stated that they were of Pérez. Other Horizon employees either identified Pérez as the individual depicted in the lower-torso photograph or stated that they had heard about the photograph and had been told that it depicted Pérez. In addition, employees recounted a number of other occasions when Pérez had allegedly exposed himself to his co-workers in the workplace. Employees also described a general atmosphere of sexually-charged horseplay among Horizon's employees, in which Pérez participated.

The Company decided to terminate Pérez's employment, and he was informed by letter stating the “based on the evidence obtained, the company had determined that he had exhibited behavior on numerous occasions in strict violation of Horizon Lines' Code of Business Conduct Policy." Pérez sent e-mails requesting additional information and contesting the employment decision, but never alleged he himself had been subjected to sexual harassment.

Pérez later filed a sexual harassment charge with the Equal Employment Opportunity Commission, and then filed a complaint in federal court asserting sexual harassment and gender discrimination claiming that his female manager did the following to him: 1) attempted to drag him to the dance floor with force by taking him by the arm and pulling him; 2) placed his car key down her pants and did not return them for an hour while at a company softball game; 3) did a sea shell reading while touching his arms in a sexually suggestive fashion; and 4) requested that he bring to her office daily hot cornbread and pastries. 

The Federal Judge was not impressed and granted Horizon summary judgment dismissing on all claims and holding that no reasonable jury could conclude that those requests were sufficiently severe or objectively offensive to prove actionable. This week the First Circuit Court of Appeals agreed and affirmed the dismissal. 

Common Sense Counsel: for Alabama employers sexual harassment is no laughing matter. There is no substitute for a well drafted written policy against harassment of all types, distribution of the policy with a signed employee acknowledgment, awareness training on the policy and a procedure to investigate and resolve complaints. And do not allow romantic involvement between a manager and supervised employees under any circumstance to continue, or allow sexual horseplay in the workplace, or risk an equally embarrassing outcome. 

Tommy Eden is a partner working out of the Constangy, Smith & Prophete, 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  

Friday, September 25, 2015

Piedmont Alabama Employees Vote in UAW



By: Thomas Eden

Workers at a truck seat plant owned by CVG manufacturing in Piedmont, Alabama voted on Wednesday to bring UAW union membership to the Deep South where the union had an especially tough history with three prior election losses at the same plant. The September 23 vote was 89-45 in favor of the UAW.

CVG’s website claims that Bostrom Seating manufactured at the Plant is the premier seating solution for light truck/sprinter van and medium sized and heavy duty trucks.

The UAW reported that employees at the Piedmont factory became galvanized around the desire for wage increases and concern over the company's hiring of temporary workers. One in four jobs at the plant are temporary positions, starting at $9.70 per hour, while the maximum wage for production workers is $15.80.

Additionally, during a heat wave this past summer when temperatures inside the 40-year old plant went up to 107 degrees, plant managers passed out water bottles and popsicles, even cold neck compresses reported on a recent NPR story on the plant. Workers who sew seat fabric say that she and other workers this summer would drip sweat just sitting down, as reported by the UAW on its website.

Walmart pay levels, tough working conditions, loss of personal days in recent years, and the skyrocketing cost of health insurance were all reasons the employees voted in favor of the union, as reported on the UAW website following its victory. Currently it costs employees at the plant $110 a week for family coverage for workers who claimed that they struggle from paycheck to paycheck. That equals about 18 percent of the annual salary of workers paid at the top wage.

With the CVG election outcome, the UAW hopes to gather momentum at other nonunion auto parts factories nearby in Alabama, as reported on its website.

Common Sense Counsel: Taking the following 7 steps can help your company avoid be an easy target for a slick talking union organizer: 1)  let your employees know how you feel about a union in your employee handbook; 2) don't be afraid to send a letter home to employees reiterating your position; 3) check your no solicitation, no distribution policies for legal compliance and property signage; 4) train your supervisor on appropriate and legal union avoidance steps (TIPS) within the law; 5) make sure your managers and supervisors are being good coaches by showing appreciation for the hard work of employees, involving them in decisions and helping to promote their career path; 6) ask your employees what you can do better with regards to safety, working conditions, communication etc – then do it.; and 7) take affirmative steps to reduce the risk of harassment, favoritism, retaliation and anything else that would hinder a respectful working environment.

Tommy Eden is a partner working out of the Constangy, Smith & Prophete, 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, September 18, 2015

Minimum Wage for Federal Contractors to Increase in 2016

By Tommy Eden & Cara Crotty


On February 14, 2014, President Obama's issued an Executive Ordering requiring certain federal contractors and subcontractors to pay an increased hourly minimum wage as mandated by the Secretary of Labor, who was also to determine increases to the wage rate on an annual basis. 

On Wednesday September 16, 2015, the Secretary of Labor Announced that, effective January 1, 2016, the new minimum wage will be increased from $10.10 to $10.15 per hour and that the rate for tipped employees will rise from $4.90 to $5.85 per hour.

What Contracts Are Covered?
The new rule applies to all "new contracts" with the federal government, provided that the contract
·      is a procurement contract for construction covered by the Davis Bacon Act, or
·      is a contract for services covered by the Service Contract Act, or
·      is a contract for concessions, including any concessions contract excluded from coverage under the Service Contract Act at 29 CFR § 4.133(b), or
·      is a contract in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public.

In addition, the wages of the workers under the contract must be governed by either the Fair Labor Standards Act, the Service Contract Act, or Davis Bacon. A "new contract" is defined as a new or replacement contract that results from a solicitation issued or after January 1, 2015, or that is awarded outside the solicitation process on or after January 1, 2015.

For contracts covered by the Service Contract Act or Davis Bacon, the Rule applies only to prime contracts at the thresholds specified in those statutes. For procurement contracts where workers' wages are governed by the FLSA, the minimum wage applies only when the prime contract exceeds the micro-purchase threshold as defined in 41 U.S.C. § 1902(a), or $3,000. The Rule provides that subcontracts are covered using the same "new contracts" test set forth above for prime contractors. Additionally, the minimum wage requirement applies only to contracts where the contract is performed, in whole or in part, within the United States.

The DOL estimates that "nearly" 200,000 American workers will benefit from this new minimum wage.

Common Sense Counsel: Those contractors involved solely in "supplying" goods to the government should not be covered by this Final Rule. On the other hand, contractors that are involved in construction projects or that provide "services" or concessions to the government or on government property should review new solicitations and contracts very carefully to determine whether the new contract clause is included. My law Partner Cara Crotty did an excellent analysis of this Final Rule found at: http://www.constangy.com/communications-548.html

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA. Cara Crotty is the drafter of this update and a partner in the Columbia, South Carolina office of Constangy and Co-Chair of the firm’s Affirmative Action Practice Group. Tommy can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com