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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



Wednesday, September 16, 2015

Webinar - Drug Testing and Disclosure of Legal Medications: Walking the ADA Tightrope


Webinar - Drug Testing and Disclosure of Legal Medications: Walking the ADA Tightrope

September 29, 2015

Presenters: Thomas M. Eden, IIISarah M. Phaff

September 29, 2015
Use and abuse of prescription and over-the-counter medications is rampant, according to a recent report from the Centers for Disease Control. Because even legal medications can adversely affect an employee's ability to work safely, exercise good judgment, and operate equipment, employers need to address the use of legal, as well as illegal, medications in their drug-free workplace policies.
But in dealing with legal medications employers do not want to run afoul of state and federal laws prohibiting disability-based discrimination, including the Americans with Disabilities Act and the Rehabilitation Act of 1973.
This fast-paced and entertaining webinar with Constangy attorneys Tommy Eden and Sarah Phaff will guide you through the legal maze so that you can ensure a safe workplace without violating the law. Tommy and Sarah both work with private and public employers nationwide to help solve some of the most challenging drug-free workplace issues.

Tuesday, September 29, 2015
12:00 - 1:00 p.m. Eastern

REGISTER NOW!

 Not available at this time? Register anyway and after the webinar we will send you a link to the recording.

For additional information, please contact Kian Wint at kwint@constangy.com.

Wednesday, September 9, 2015

Marijuana: A Special Kind of Stupid


By: Thomas Eden
Joe Garcia Diaz was a Manhattan Beer Distributors beer truck route driver when he was injured and filed an incident report. The next day, he reported to work and discovered that he was not scheduled to work on any routes, but instead was listed on the schedule with the notation “Workers’ Compensation.” Diaz opened the sliding window on the front wall of the delivery office to speak to the delivery manager about the schedule, asking why he did not have an assignment. At that time, the delivery manager noticed that Diaz “reeked of the smell of marijuana” and that his eyes were glassy and bloodshot. The facility manager, who was standing nearby, asked Diaz to come inside the office and asked Diaz how he was feeling. He then commented that Diaz smelled “funny” and asked if he “was doing anything stupid.” The manager subsequently informed Diaz that he had a route for him, but that Diaz would have to take a drug test first.

Diaz told the manager that he did not have a problem taking a drug test, but that he wanted his union shop steward present. Diaz then left the office area and called the assistant shop steward, but he could not reach him. Diaz then called his shop steward who told Diaz that it was his day off and that he could not accompany him to the drug test. While Diaz was on the phone, the manager drove up and without regard to Diaz’s requests for a union representative, instructed him to get into the car to take him for his drug test. Diaz replied that he would not take the test without a shop steward. The manager advised him that his failure to do so would be treated the same as a positive result, potentially resulting in his termination. Diaz told both managers that although he had no problem taking the test, he felt his rights were being violated because his shop steward was not there, observing that “[s]ince he’s not able to be present, I’m not taking the test.”

Manhattan Beer Distributors later discharged Diaz and then sent an email to certain union officials stating that Diaz was discharged for “his refusal to submit to sub- stance abuse testing based on reasonable suspicion.” The union subsequently filed a Section 8(a)(1) charge under the National Labor Relations Act claiming that denying Joe Garcia Diaz his right to union representation at an investigatory interview that he reasonably believed would result in discipline was unlawful.

An administrative law judge agreed and the case subsequently ended up before the National Labor Relations Board (NLRB). The Board majority held that the two managers determination that Diaz was under the influence of marijuana was based entirely on their sensory perceptions of Diaz’s appearance and odor, and at the very least, the physical presence of a union representative was necessary in order to permit the representative to independently observe the condition and potentially contest the grounds for their suspicions. There was a sharp division among members of the NLRB and the democratic majority held that Manhattan Beer Distributors discharged Diaz for refusing to take the test without a union representative present and ordered Diaz’s reinstatement and back pay.

Common Sense Counsel: it is extremely difficult to find any common sense in this NLRB decision. Diaz drove a DOT regulated vehicle and therefore falls under the mandated drug testing provisions of those regulations and must immediately report for a reasonable suspicion drug test when ordered to do so by a trained supervisor. Make sure that all of your supervisors are trained in reasonable suspicion drug testing.

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