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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