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Friday, January 30, 2015

OFCCP Releases “Bathroom” Rules

The Office of Federal Contract Compliance Programs announced a proposed rule to update the agency's sex discrimination regulations. The OFCCP's existing guidelines on sex discrimination were issued in 1970 and, admittedly, do not align with existing law and precedent in some areas.

The OFCCP's proposed rule would "eliminate current provisions that are outdated, revise[] others to align... with current law and interpretations, and include[] new provisions that address contemporary problems." For example, the OFCCP proposes to remove references to "male only" hiring practices, as employers rarely (hopefully, never!) use such language in job advertisements. Another outdated reference in the existing guidelines refers to sex-segregated newspaper columns, which no longer exist. (Thank goodness!)

As the OFCCP notes in its Fact Sheet, the agency "interprets the nondiscrimination provisions of [Executive Order] 11246 as being consistent with the principles of Title VII of the Civil Rights Act of 1964, which is enforced by the Equal Employment Opportunity Commission." Thus, it is not surprising that the OFCCP's proposed rule parrots the EEOC's enforcement positions. Some of the new provisions highlighted by the OFCCP include the following:

• It is discrimination to treat an employee adversely because of gender-based stereotyped assumptions about family caretaking responsibility. (The EEOC addressed this several years ago.)

• Leave for childcare must be available to men on the same terms as it is available to women.

• Adopting the EEOC's recent guidance on pregnancy discrimination, contractors must provide workplace accommodations, such as extra bathroom breaks and light duty assignments, to pregnant women that are comparable to accommodations made for other workers similar in their ability -- or inability -- to work. (The OFCCP says that it will revise this provision, if needed, depending on the outcome of a case involving pregnancy discrimination and accommodation that is currently pending before the U.S. Supreme Court.)

• It is discrimination to treat an employee adversely because he or she does not conform to gender norms and expectations about appearance, attire, and behavior.
For the most part, the proposed rule is business as usual. The OFCCP does include a few provisions, however, that may raise some eyebrows. For example, the proposal would ban the use of "gender-specific terms for jobs (such as 'lineman')." This seems to address "political correctness" more than actual discrimination, as most such terms are treated as generic titles rather than references to gender.
The proposal would also expressly require that contractors provide transgender employees access to bathrooms used by the gender with which they identify. Although many employers currently do this, such a requirement has not been previously mandated by federal law.

The OFCCP is also proposing to add a discrete section to the regulations addressing compensation discrimination. The provisions largely incorporate the agency's controversial Directive on this topic. Although the agency says that compensation comparisons must be made between "similarly situated" individuals, the government's view of what constitutes "similarly situated" is broader than most employers' perspectives.

In addition, although the proposed rule does not specifically address a prohibition against sexual orientation discrimination, "[a]dverse treatment of an employee because he or she does not conform to sex-role expectations by being in a relationship with a person of the same sex" is classified as sex discrimination based on sex-based stereotypes. This goes well beyond any position taken by the EEOC or the OFCCP in its recent Directive outlining why discrimination on the basis of gender identity is discrimination on the basis of sex. However, this is of little import to federal contractors because the revised Executive Order prohibits discrimination on the basis of sexual orientation anyway.

What's the point?
Do federal contractors or the OFCCP really need these additional rules? After all, the EEOC has already pronounced its interpretations and enforcement positions on these topics, and the OFCCP interprets the prohibition on sex discrimination in E.O. 11246 the same way. Why do we need duplicative rules from the OFCCP? Furthermore, the OFCCP does not have regulations addressing race discrimination or national discrimination, so why issue this proposal?

One possible reason is that the EEOC has not issued regulations addressing many of these issues; the Commission simply issues Enforcement Guidance or Informal Discussion Letters in most cases. Although these statements of agency position have some weight and authority, they do not have the strength of a regulation issued after notice and an opportunity for comment. Thus, if the OFCCP finalizes these rules, they will carry greater weight and require more deference from courts than the EEOC's informal guidance does. The OFCCP specifically states that its final regulations will have "the full force and effect of law."

Could that be why the OFCCP has proposed these rules? Or is the government issuing meaningless and duplicative regulations that will have to be updated whenever the EEOC changes its position or the Supreme Court rules against the EEOC? Why isn't the best approach to simply rescind the existing OFCCP guidelines and rely on the EEOC's sex discrimination regulations and informal guidance instead of creating new and different regulations for federal contractors? Certainly, the federal contracting community will weigh in on these issues in comments to the agency. And we will continue to keep you updated.

Comments to the proposed rule are due March 31, 2015. If you have any questions, please contact any member of Strategic Affirmative Action Practice Group, or the Constangy attorney of your choice.

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 or 334-246-2901. Blog at with full article and links.

Friday, January 23, 2015

Sorry I Can’t Go Dilemma

By Tommy Eden

Lorenzo Cook applied for an associate position at the Kmart store located in Hyattsville, Maryland. Following an interview he was offered the position of customer service associate. During his appointment to fill out his new hire paperwork and take a mandatory drug screen, Cook told the hiring manager that he had kidney failure and could not produce a urine specimen for testing because of the disease and he undergoes dialysis. However, Cook did offer to undergo an alternative type of drug screening including hair, blood or other non-urine forms of drug testing. Two weeks later Cook was called and told that Kmart required all new hires to complete a standard urine test. Kmart withdrew Cook’s offer.

Cook then filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), which later filed suit on his behalf in Federal District Court in Maryland claiming that Kmart’s refusal to allow Cook an alternative drug specimen test violated the Americans with Disabilities Act (ADA). The suit alleged that the manager did not enter into an interactive discussion with Cook about possible alternative drug test but rather summarily denied his request for an accommodation.

This week Kmart agreed to enter into a consent decree with the EEOC, agreed to pay Cook $102,000.00 and modify its alcohol and drug-free workplace policy and pre-employment drug testing policy to include a description of its obligations provide reason accommodations to employees or applicants in the testing process. Under the consent decree the revised policy must state Kmart’s ADA obligation to provide reasonable accommodations to employees and/or applicants in its alcohol and drug testing program, the accommodation process and the person to whom a request should be directed. The consent decree also mandated that a similar notice be placed on Kmart’s electronic recruiting and hiring system.  In October Wal-Mart agreed to pay $72,500 to a job applicant in similar case not 40 miles driving distance in Cockeysville, Maryland. [See Oct 31, 2014 Blog Post]

Common Sense Counsel: every employer drug and alcohol testing policy should be evaluated to determine if it could pass muster under this Kmart consent decree. Failure to do so will place you at risk of an EEOC charge that two well-placed sentences would have allowed you to avoid. Oral fluid and hair test are readily available alternatives in non-DOT testing and a shy bladder evaluation process is already built into the federal drug testing regulations. With this "sorry I can't go" epidemic across Maryland, employers would be wise to move quickly to put in place a policy update and compliance program to make sure you don’t draw the costly “Go to the EEOC Card.” 

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.

Thursday, January 15, 2015

One Word Explains Ducks National Championship Loss

By: Tommy Eden

It takes two words to explain why the Oregon Ducks lost the national championship game to Auburn in the 2010 Sugar bowl – Cam Newton. Things are simpler now. The one word which easily explains the loss by the Oregon Ducks to Ohio State is marijuana. 

Recall the sports headlines the week before the big College Football Playoff National Championship Game. “BREAKING: Oregon wide receiver Darren Carrington suspended for national title game.” Carrington, a redshirt freshman, had the best performance of his Oregon career during Oregon's 59-20 win over Florida State in the Rose Bowl playoff game when he caught seven passes for a season-high 165 yards and two touchdowns. The week before Carrington had seven catches for 126 yards during the Ducks 51-13 win over Arizona in the Pac-12 title game. Oregon was a two-touchdown favorite the day before Carrington was banned for a positive marijuana test. Later it was announced that Running back Ayele Forde became the second Oregon player to be left home following a failed drug test.

NCAA drug test were administered at the Rose Bowl where the Men of Oregon embarrassed Florida State. Oregon was trounced by Ohio State 42–20 and it was obvious to all who watched the game that Heisman winning quarterback Marcus Mariota was missing one of his key lethal weapons that helped the team average 49 points a game. 

Under NCAA rules a marijuana test is positive if there is more than 5 ng of THC in a blood test. For the NFL it is 15 ng and in MLB it is 50 ng. You think maybe the fact that the State of Oregon voted to go recreational marijuana in the November 2014 election emboldened certain players to get a head start on the July 1, 2015 opening sales day? Oregon’s legalization would have no effect on NCAA drug testing rules. 

Some say marijuana use doesn't hurt anyone. If you ask Marcus Mariota, and the rest of the Men of Oregon in the locker room after their humiliating defeat, they might have a different opinion.

Common Sense Counsel: so whether you are a college head football coach, or an employer who coaches a team at work, what is your survival plan as more states go to Pot? Try these 7 practical steps:

·      Understand the laws on Marijuana that are specific to states where employees report for duty;

·      Adopt a legally vetted pre-duty prescription medication and impairing effects substances safety policy that makes it all about safety;

·      Update employee job descriptions to cover critical safety sensitive issues;

·      Adopt an ADA complaint handbook policy on reasonable accommodations in those more difficult states that grant some level of employee status protections;

·      Let employees know your stance on Medical and Recreational Marijuana use;

·      Update your drug-free workplace policy and forms to stay in compliance and reduce the risk of claims and lawsuits; and

·      Stay tuned as this issue continues to create new employer challenges almost monthly.

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

Thursday, January 8, 2015

15 Employment Law Resolutions for 2015

By David Pippin & Tommy Eden

While the year is still young, here are 15 New Year's resolutions that employers may want to make:

1. Make sure your "independent contractors" are really independent contractors. "Independent contractors" are under scrutiny by the Internal Revenue Service, the U.S. Department of Labor, the National Labor Relations Board, state and local agencies, plaintiffs' lawyers, and union organizers. A misclassification can cost you back taxes, back pay (including overtime), and back benefits, as well as penalties and interest.

2. Review your email policies. The NLRB recently found that employees generally have a right to use employer email systems during non-working time in support of union organizing and concerted activity. The Board's decision means that many employer email use policies, as currently drafted, would probably be found to violate the National Labor Relations Act if an unfair labor practice charge were filed or a union tried to organize employees and argued that the employer's email policy interfered with the organizing efforts. In light of the new "quickie election" rule that the NLRB issued last month, both union and non-union employers would be well advised to review their email policies and revise as needed. (The "quickie election" rule is scheduled to take effect on April 14, but the U.S. Chamber of Commerce and other employer groups, including the Society for Human Resources Management, filed suit on Monday seeking to block the rule.)

 3. Review your policies on social media, confidentiality, and "courtesy." The NLRB is going after garden-variety employer policies, taking the position that the policies interfere with and have a chilling effect on employees' rights to engage in concerted activity. Among the commonplace policies under attack are those requiring that information about the company or employees be kept confidential; policies requiring that employees treat each other with courtesy, respect, and civility; and even some policies requiring that employees not disclose confidential and proprietary information. As with the email policies, a non-compliant policy could result in an unfair labor practice charge or the setting aside of an employer victory in a union election.

4. Review your severance agreements. The U.S. Equal Employment Opportunity Commission has taken the position that certain standard provisions in employee separation agreements unlawfully interfere with employee rights to bring or cooperate in the investigation of discrimination charges before the EEOC, and has filed suit against some employers using agreements with terms that the EEOC doesn't like. One of the lawsuits has already been dismissed, but the court in that case did not make a ruling as to whether the EEOC's position had merit. Even if you decide to take your chances with your current agreement, it's not a bad idea to consider toning down provisions that you know the EEOC will find objectionable.

5. Review your leave policies and their administration. It's not just the Family and Medical Leave Act anymore, although that's enough in itself. You've probably seen that a number of states – most recently, Massachusetts – have enacted paid sick leave laws. Do your leave policies comply with the laws of the all the jurisdictions where you operate? And what do you do when an employee reaches the end of a sick leave or disability leave period? If you automatically terminate, then you could be in violation of the Americans with Disabilities Act as well as state or local disability rights laws.

6. Audit your wage-hour compliance. Unintentional overtime and wage-hour law violations have a new name in many quarters: "wage theft." Federal and state agencies and plaintiff's lawyers, sometimes encouraged by labor unions and their affiliate groups, are saying "show me the money" and finding it. In addition, the U.S. Department of Labor has said that it will attempt to narrow the white-collar exemptions this year. (Although the DOL says the changes will not be drastic, they are expected to be drastic.) Among other things, a good wage-hour audit will include ensuring that lower-wage employees are getting at least the applicable minimum wage; that employees are not being required or "pressured" to work off the clock, or "winked at" when they do so; that the employees classified as "exempt" really are; and that any "independent contractors" really are (see also Resolution No. 1). Be sure that the review includes compliance with applicable state and local minimum wage laws, too. Many states now have a higher minimum wage than the Fair Labor Standards Act rate.

7. Update your EEO/no-harassment policies, and get that training done! In just the past year, the EEOC has taken the position that pregnancy and related conditions (including lactation) must be reasonably accommodated. The EEOC and the Office of Federal Contract Compliance Programs, which enforces the affirmative action laws that apply to federal contractors, both agree that "gender identity" is a protected category and that discrimination based on sexual orientation or gender identity violates Title VII. Do your policies reflect this? Do your employees know the new rules? Do victims of harassment and discrimination know that they have recourse?

8. Review your use of criminal background and credit information in hiring decisions. Many state and local laws prohibit employers from asking about criminal history on employment applications, and the EEOC has taken an aggressive position on the use of criminal or credit information in making employment decisions. You can still get this information, but are you getting it properly? If you find that an individual has a criminal or credit problem, are you making the required "individualized analysis" that takes into account, among other things, the nature of the conviction, the years that have passed, and the particular position for which the individual is applying? Did you grab some "canned" rules from a website, or are your rules customized to fit your industry, your workforce, and the people you serve?

9. If you're a federal contractor, make sure you are up to date on all of the OFCCP's new requirements. For example, the new requirement that you prohibit discrimination or harassment based on gender identity. The new minimum wage (applicable to some, but not all, federal contractors). The new scheduling letter and itemized listing. The proposed rule prohibiting employers from requiring that employees avoid discussing their pay. The rule requiring employers to "air their dirty linen" by disclosing certain violations of federal labor and employment laws. The new rule on disability discrimination/accommodation and veterans. ("Perform compensation analysis" is another good resolution if you haven't done one lately.)

10. Make sure you're in compliance with the new injury and illness reporting requirements under the Occupational Safety and Health Act, which took effect on January 1. We reported on this new rule back in September.

11. Are your non-competes enforceable? And are you using them judiciously? Laws on the enforceability of non-compete agreements vary from state to state. If your agreements have not been reviewed in a while, this would be a good time to have them reviewed to ensure that they'll do you any good if you need them. You may also need to review your territorial or customer restrictions to ensure that they are serving your current business needs, as opposed to the needs you had 10 years ago.
It's also a good idea to take into account how your non-competes are being used, even if they are generally in compliance with the law. A national sandwich chain recently had a public relations nightmare after it came to light that some restaurants were requiring hourly, minimum wage delivery employees to sign non-competes.

12. Keep on monitoring the "legal pot" issue. A patchwork of state and local laws is developing that permits medical or recreational use of marijuana. Right now, it's still all right under federal law for employers to ban marijuana use, even in states where it's legal, because use of marijuana violates federal law. But that doesn't mean you couldn't run afoul of state law. This issue is developing quickly, so keep watching, and be ready to make appropriate adjustments to your substance abuse policy depending on what happens.

13. Make sure you're ready for the Affordable Care Act. Review your current compliance with your benefits counsel and consultants. If you have collective bargaining agreements coming up for re-negotiation or renewal, consider building in some sort of "flexibility mechanism" to deal with the huge uncertainty that the ACA is generating. As examples of the moving target that the ACA has become, the Supreme Court agreed in November to hear a case challenging the subsidies to states that did not set up their own insurance exchanges. (A decision is expected this summer.) And just this week, the Republicans in Congress introduced two bills designed to mitigate parts of the employer mandate.

14. Review your contracts with staffing services and true independent contractors. This is a good time to examine your contracts with staffing providers and genuine independent contractors to be as certain as possible that you have properly allocated risks and responsibilities, including insurance obligations, indemnification rights and obligations, compliance with wage and hour and other recordkeeping obligations, employee supervision, employee safety, discrimination or other required training, benefits compliance, anti-discrimination compliance, and recordkeeping obligations and procedures. (If you aren't sure whether your "independent contractors" are true independent contractors, then go back to Resolution Nos. 1 and 6.)

15. Review your alternative dispute resolution policy, or consider adopting one. If you already have an arbitration agreement, is it drafted, published, and executed through agreements with employees in a manner to be enforced by a court? The NLRB still refuses to recognize arbitration agreements that eliminate the possibility of class or collective arbitration, but the Board's position has been rejected in three federal circuits. The courts generally favor arbitration agreements, so if you do not have one, it might be worth consideration. For employers with collective bargaining agreements, consider whether you should negotiate to obtain grievance and arbitration provisions that would help to meet the NLRB's new standard for post-arbitration deferral.

Making your preventive employment law checkup appointment now will keep you out of a federal agency waiting room or a day long deposition in a windowless room with some unpleasant plaintiff’s counsel.

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. David Pippin is in the firm’s Metro Washington D.C. Office. He can be contacted at or 334-246-2901. Blog at with a more complete version of the excellent blog post David did for Constangy this week.

Friday, January 2, 2015

Top 10 Resolutions of Highly Respected Leaders

By: Tommy Eden

What can you do in 2015 that will be a game changer for influencing and inspiring the people you lead, supervise, manage or just happen to live with. In 2015 practice daily these 10 resolutions of highly respected leaders and you will be amazed:

1) Be Appreciative - who at your place of work has ever complained they received too much feedback? Most likely none raised their hand. Employees at all levels are starving for genuine feedback and appreciation. Be appreciative and supercharged employee engagement will be your reward. When you see good work say it. What you recognize gets repeated.

2) Be an Encourager - how many times in your life has a coach, teacher, parent or great boss looked you in eye and encouraged you to achieve much more. They gave you that second wind. Be an encourager and people will always seek to be part of any team you lead.

3) Be a Critical Thinker - the first secret to being a critical thinker is to admit what you don't know. Critical thinking comes through being a perpetual learner and asking questions and fully exploring assumptions before you embrace them. Blind spots and biases can overtake our best intentions. Assemble your team and with groupthink chart on a big board your vision and values for 2015. You will be surprised what you learn together.

4) Be Optimistic - emotions are contagious. Some people make the workplace better and brighter just by showing up. Be that person who daily spreads contagious optimism within your workplace and you will never lack for a team of true believers.

5) Be Resilient- “ it is that space and time between disappointment and recommitment. Between sorrow and feeling. Between offense and forgiveness. Between setback and "so what - I will try it another way."

6) Be a person who Laughs - levity is that magic ingredient which makes the time spent with others memorable. It is humor that brings genuine laughter and happiness into teams and builds relationships. It is never crude and destructive.

7) Be a Collaborator - continually seeking out ways to lift others up and help them succeed even when it may not directly benefit you. Find out what obstacles get in the way of their success and discover their personal hopes and dreams. You will then be known as a person of inclusion, one who spans boundaries and breaks barriers in your organization.

8) Be an Apologizer - who puts taking personal responsibility above saving face. It means stepping up and fessing up; saying "I let you down" or "I was wrong." Apology is the hallmark of integrity.

9) Be one who Engages others - allowing someone the freedom to make mistakes is powerful - verses micro-managing. For with choice also comes the power to succeed greatly and discover new and better ways to do the work of making a profit.

10) Be a Lover - showing genuine love, concern and sacrifice for those that are dear to you has been the greatest motivator in the world for over 2000 years. Find ways to lift up on a platform those you work with, or live with, and they will feel your love. Who knows, maybe daily practicing these resolutions will even change your world in 2015.

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