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Tuesday, June 30, 2015

Obama Administration Announces 2016 Salaried Overtime Expansion Proposed Regulation

The U.S. Department of Labor announced today a proposed rule that would raise the minimum salary threshold required to qualify for the Fair Labor Standards Act's “white collar” exemption to $50,440 per year, $970 a week.

In order to be exempt from minimum wage and overtime requirements under the FLSA exemption for executive, administrative, professional, outside sales and computer employees, under current FLSA regulations, employees have to meet certain job duties-related tests and be paid at least $455 per week—or $23,660 annually.

The proposed regulation calls for rising to equal the 40th percentile of weekly earnings for full-time, salaried workers.  That would bring it to a projected level of $970 per week, or $50,440 annually, by the first quarter of 2016. The proposed regulation also includes automatically updating that salary threshold in order to stop it from becoming outdated.

While the DOL said it was considering whether to make changes to the duty tests, the proposed regulations do not, however, include changes.

Friday, June 26, 2015

Same-Sex Marriage Is A Fundamental Right, High Court Rules

By: Tommy Eden

Today the High Court ruled in a highly watch 5-4 decision that there is a constitutional right to same-sex marriage under the 14th Amendment. State bans, like Alabama has, are therefore unconstitutional.

The court majority held that the equal protections granted by the 14th Amendment extend to the right to marry regardless of whether a marriage involves same-sex or opposite sex partners.

Common Sense Counsel: If you have not noticed, we are in the mist of a societal transition. By the end of 2015, 50% of the workforce will be comprised of millennials, those born after 1980, which are driving this issue. Surveys show that 56% of that age group is in favor of same-sex marriage. So you would be wise to consider taking the following steps:

1) Revise your FMLA policy to define "spouse" to  “include employees in a legal same-sex marriage”;
2) Determine what “celebration” documents will be necessary to establish spousal status;
3) Closely examine all handbook provisions to see if you wish to adopt one consistent definition of “spouse”, such as in your bereavement policy;
4) The other hot button issues worthy of throwing in the discussion is adding “sexual orientation and gender identification” in your EEO and Harassment policy to avoid a transgender EEOC charge; and
5) While you are tinkering with your handbook, give it an overhaul with new policies on social media, criminal background checks, solicitation and distribution, union avoidance, drug testing, military leave and workplace violence prevention.

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, June 25, 2015

Is That Your DNA?

By: Tommy Eden

Atlas Logistics Group Retail Services, LLC ("Atlas") of Atlanta Georgia operates warehouses for the storage of products sold at a variety of grocery stores. Beginning in 2012 a mystery employee began habitually defecating in one of its warehouses. which necessitated destruction of some grocery product. To solve the mystery of the devious defecator, Atlas requested some of its employees, including Jack Lowe and Dennis Reynolds, to submit to a cheek swab.

Lowe and Reynolds asserted in their complaint that Atlas managers separately called them into meetings and asked them to provide saliva samples, and threatened them with discipline if they refused to do so. Both claimed to have provided the requested samples “under pressure,” without being informed of their rights under the Genetic Information Nondiscrimination Act ("GINA”) and were also instructed not to tell any other employees about the tests.

The cheek cell samples were then sent to a lab where a technician compared the cheek cell DNA to DNA from the offending fecal matter. Lowe and Dennis were not a DNA match as reported to Atlas. Lowe and Dennis, feeling highly offended and insulted by Atlas’s actions, filed suit in Federal Court in Atlanta under the Genetic Information Nondiscrimination Act ("GINA”) which generally prohibits employers from requesting genetic information from its employees. A summary judgment motion was later filed by Lowe and Dennis requesting a ruling in their favor.

In ruling on the motion in favor of Lowe and Reynolds, the Court determined that the unambiguous language of GINA covered Atlas's illegal requests for Lowe and Reynolds's genetic information and compelled judgment in favor of Lowe and Reynolds. GINA makes it "an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee." 42 U.S.C. § 2000ff-1(b). Section 2000ff-1(b) lists six exceptions to this general prohibition, but Atlas admitted that none of the statutory exceptions applied. GINA defines genetic information as "with respect to any individual, information about (i) such individual's genetic tests, (ii) the genetic tests of family members of such individual, and (iii) the manifestation of a disease or disorder in family members of such individual." 42 U.S.C. § 2000ff(4). The statute defines "genetic test" as "an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes, mutations, or chromosomal changes." 42 U.S.C. § 2000ff(7). The judge set the case for trial in June 2015.

On June 22 a federal court jury in Atlanta, Georgia awarded a total of $2.23 million to Lowe and Reynolds in the case of Lowe v. Atlas. Lowe was awarded damages to compensate for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-monetary losses in the amount of $250,000; Reynolds $225,000. On the question did Atlas  “act with malice or with reckless indifference to the Plaintiffs' federally protected rights such that punitive damages should be assessed against them”; the two men were jointly awarded $1.75 million.

Common Sense Counsel: the Genetic Information Nondiscrimination Act ("GINA”) is far reaching and largely uninterrupted law. This is the first jury verdict I am aware of; and what a verdict over a pile of poop.  Know your legal limitations and risk next time you decide to play DNA detective.

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 or 334-246-2901. Blog at and follow on twitter tommyeden3

Monday, June 15, 2015

Colorado Supreme Court Beats the Reefer

By Tommy Eden

Brandon Coats was partially paralyzed in a car crash as a teenager, using a wheelchair, and has been a medical marijuana patient since 2010 when he discovered that using pot helped calm violent seizures and muscle spasms. Coats was a telephone call-center operator with Dish Network for three years before he failed a cheek-swab random drug test in 2010 and was fired. Dish Network has a zero-tolerance policy against using illegal drugs.

 Today, the Colorado Supreme Court sided with Dish Network in holding that because marijuana is till an illegal drug under federal law that the employer was within its rights to fire Brandon Coats. In doing do the Court specifically rejected Coats argument that the company violated a Colorado state law that protects workers who engage in lawful off-duty conduct.

Specifically, the Court held that under the plain language of section 24-34-402.5, 13 C.R.S. (2014), Colorado’s “lawful activities statute,” the term “lawful” refers only to those activities that are lawful under both state and federal law. Employees who engage in an activity such as medical marijuana use, that is permitted by Colorado state law, but unlawful under federal law are not protected by the statute. This was a highly anticipated and watched decision.

Colorado voters first approved a constitutional amendment authorizing the use of medical marijuana in 2000. Marijuana for recreational use was approved by voters in 2012 and started being sold in retail shops in Colorado on April 1, 2014.

 Twenty-four states and the District of Columbia now have medical marijuana laws.  Colorado law specifically states that employers do not  have to accommodate employees’ marijuana use. But other states such as Arizona, Nevada, New York, Minnesota, Rhode Island and Delaware grant various levels of protections to medical marijuana card holders from discrimination.

 Additionally, the Supreme Courts for the states of California, Washington, and Montana have all ruled that an employer has no duty to accommodate the use of an “illegal drug” such as marijuana. The fact that marijuana remains a schedule one “illegal drug” under federal law has been critical in each ruling for the employer, as it was in this case.

 Coats brought his lawsuit against Dish under Colorado’s lawful off-duty activities law, which specifically says employers cannot fire people for doing something legal on their own time. Originally the law was enacted to protect cigarette smokers and multiple states have similar laws. Both the trial judge and Colorado Court of Appeals have already ruled against Coats “legal use” argument holding that as long as marijuana is illegal under federal law the state law does not apply.

Common Sense Counsel: So what should an employer who has employees assigned to work in a medical marijuana state do? Consider these 5 Steps an employer can take to successfully walk the workplace marijuana tightrope:

1. Understand the laws on Medical 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 an ADA complaint handbook policy on reasonable accommodations in those more difficult states;
5. Let employees know your stance on Medical and Recreational Marijuana use;
6. Update your drug-free workplace policy and forms; and
7. 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

Friday, June 12, 2015

12 Traits of Great Supervisors

1. Communicator: Must communicate clearly to avoid misunderstandings and frustrations. When receiving information from an employee make sure to receive it correctly – no harm in asking again to make sure.

2. Is Adaptable: Our world is changing at a lighting fast pace. Good supervisors keep up with it and do not just follow the age old norms. They think out of the box if required – especially when it come to managing Millennials.

3. Values Employees: A great supervisor understands their worth and daily shows  how he/she cares.

4. Is a Coach: Good supervisors share their wisdom, knowledge and experience with the employees as one way to show they care.

5. Disciplined: Arrives at work on time, meets deadlines, behaves and models what they want repeated.

6. Gives Feedback: Employees, especially Milleninals, are starved for good honest feedback. Secret Sauce – always trying to catch people dong things right and give them a one minute praising.

7. Is Hands On: Does not just delegate, but take on projects and work as well. Takes up challenges to show how all work is important.

8. Is Approachable: Employees should not hesitate in approaching the supervisor with their concerns and problems. That only happens when their is trust and openness.

9. Is Considerate: People are not just employees, but have families, friends and a life beyond work. Be practical when setting schedules, which will improve the efficiency and the productivity of the employees.

10. Is Positive: Good supervisors are polite, wish employees good mornings, thanks them often and ask about their families.

11. Criticizes Positively:  As my grandmother always told me if you put a little honey of the front of the spoon it helps the vinegar go down better. Same with employees – disciplines in private and make it as positive as possible.

12. Is a Learner: Continually tries to learn new and better ways to inspire those he/she coaches.

Common Sense Counsel: If you really want supervisors with these 12 traits you have to invest in their training. Sign them up today for the EASHRM Supervisor Bootcamp on June 16, 2015 7:30am – 2pm (EAMC Health Resource Center) and you will be amazed with the change! Dr. Garth Staffer and I will be the lead trainers teaching how to really succeed managing Millennials, top 9 employment litigation landmines and how to avoid them, tips to stay union free, how to win the Alabama Unemployment Compensation case and supervisor drug & alcohol reasonable suspicion training. Register at Or call Aimee Sikes at 334-321-3264

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 or 334-246-2901. Blog at with live link to the EASHRM sign up page.

Friday, June 5, 2015

Mind Reading Required of Employers

By: Tommy Eden

Abercrombie Kids, a division of national clothing retail giant Abercrombie & Fitch, refused to hire Samantha Elauf, a 17-year-old Muslim girl, in June 2008 for a position at its store in Woodland Hills Mall in Tulsa, Okla., because she was wearing the hijab when she was interviewed and this violated the company’s “look policy.”  The “look policy” prohibited the wearing of any head coverings.  Abercrombie claimed that she never told the hiring manager that she was seeking a religious accommodation to wear her headscarf at work, and additionally allowing Samantha to wear a hijab would cause an undue burden on the conduct of its business.  Samantha claimed to be a typical American teenager who has a sincere religious belief that she must wear a headscarf.

The U.S. Equal Employment Opportunity Commission (EEOC) then gave Abercrombie Kids policy “the look” and charged that it failed to hire Samantha for a sales position because she wore a hijab, or head scarf, in observance of her sincerely held religious beliefs.  Abercrombie Kids had previously allowed numerous exceptions to its “look policy,” including eight or nine head scarf exceptions. Suit was filed in EEOC v. Abercrombie & Fitch Stores, Inc under Title VII of the Civil Rights Act of 1964, as amended, which protects workers from discrimination based upon religion.  Title VII requires employers to provide reasonable accommodations for the religious practices of its applicants and employees when to do so would not be an undue hardship.

Last week the United States Supreme Court decided that Samantha did not have to ask for a religious accommodation or show "actual knowledge" by the hiring employer of the need for an accommodation, but only that the employer had an  "unsubstantiated suspicion" that an accommodation would be necessary just by looking at her. The Court made a distinction between motives and knowledge holding that Title VII’s intentional discrimination prevision prohibits certain motives, regardless of knowledge.

Common Sense Counsel: Carnack the Magnificent (famous Johnny Carson role) would be the absolute perfect HR manager in this case knowing what is in the mind of the applicant. Train your hiring managers not to speculate on an accommodation issue- especially not in writing.

A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his/her religion. An employer might accommodate an employee's religious beliefs or practices by allowing: flexible scheduling, voluntary substitutions or swaps, or modification of grooming requirements. Religious discrimination is a hot button issue for the EEOC. Have a well drafted employee handbook, job description, grooming policy and be in an “accommodating” mood when approached by your headscarf , Christian Cross, Star of David, skull cap, turban, wearing employee or an applicant.

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 or 334-246-2901. Blog at and follow on twitter tommyeden3