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Friday, April 29, 2016

NEW Employer Guide to Family and Medical Leave Act & Poster

By: Thomas Eden

The U.S. Department of Labor, Wage and Hour Division, has issued a new 75-page guide for employers on the Family and Medical Leave Act. It is has some cute comics, compliance road maps and situational aids about the FMLA request and approval process.

There is also a new FMLA poster, which is a free pdf download from the Department of Labor website. Employers who prefer to keep using the 2013 version may do so without being in violation.

“Since its enactment in 1993, the Family and Medical Leave Act (FMLA) has served as the cornerstone of the Department of Labor’s efforts to promote work-life balance and we have worked in support of the principle that no worker should have to choose between the job they need and the family they love. With the FMLA, our country made it a priority to give workers the ability to balance the demands of work and family. It made the healthy development of babies, healthy families, and healthy workplaces a priority. It was a remarkable accomplishment at the time and, since its enactment, the FMLA has been used more than 100 million times to help workers balance the demands of the workplace with the needs of their families and their own health.”

See what’s inside:
GENERAL NOTICE REQUIREMENTS                                  
CHAPTER 3 – QUALIFYING REASONS FOR LEAVE                                  
CHAPTER 4 – THE CERTIFICATION PROCESS                              
CHAPTER 5 – MILITARY FAMILY LEAVE                          
CHAPTER 6 – DURING AN EMPLOYEE’S FMLA LEAVE                           

Common Sense Counsel: having a properly drafted FMLA policy, mandated forms and supervisory training on this new guide is the bare minimum. Keeping a cool head when those around you do not, is leadership and legal risk reduction as seen by my recent column holding an HR Director individually liable for interference with FMLA rights.

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 or 334-246-2901 with blog at with links to resources.

Friday, April 22, 2016

Reasonable Accommodation Two Way Street

By: Thomas Eden

Kathleen Huge was an employee at Boeing when she informed the company that she had high functional Autism, ADD, ADHD (also known as of Asperger’s syndrome), and requested multiple accommodations; according to court records. Boeing’s records described the subsequent work restrictions as, “no work requiring social interaction beyond her direct supervisor, job assignments should be repetitive, complex instructions should be broken down into small steps, requiring job expectations to be written and discussed thoroughly with Huge, and limit novel social situations.” Huge presented Boeing with a letter from her doctor describing her condition and requesting that she receive all work instructions in writing. After discussing this accommodation with Huge, Boeing agreed to provide all work instructions in verbal and written form. Boeing then placed Huge on non-occupational medical leave so it could evaluate her condition and determine the feasibility of accommodations.

While she was on leave, Huge, through numerous doctors and legal counsel, requested a number of different and contradictory accommodations, including reversing her previous request for written instructions. She then insisted on a permanent vocational job coach. Huge and her counsel canceled scheduled exams and requested that a personal assistant accompany Huge to the exam. Huge never submitted to the Boeing scheduled independent medical evaluation.

When Huge finally returned from medical leave, she was provided a job coach but spent the majority of her time at work attempting to build a lawsuit against Boeing. When Boeing ultimately terminated Huge for poor performance, after written warnings, she filed suit alleging discrimination, retaliation, and failure to accommodate her disability in violation of the ADA and Washington state law.

After a bench trial by the federal judge without a jury, the court held that Huge’s failure to engage in the interactive process in good faith could defeat her failure to accommodate claim. The judge noted, “the interactive process requires communication and good-faith exploration of possible accommodations between employer and employee and neither side can delay or obstruct the process.” In contrast, the judge noted Boeing’s patient and thoughtful approach to Huge’s numerous requests.

Common Sense Counsel: This presents one of the most difficult situations for an employer to manage – attempted accommodation of a disruptive mental health issue. Following these 5 Steps can help keep your eventual breakup out of Court:

1) Adopt legally compliant FMLA, ADA Reasonable Accommodation and Non-FMLA leave policies in your Employee Handbook;

2) Retain a knowledgeable occupational physician to consult with to make individualized assessment fitness for duty determinations;

3) Update all job descriptions to include regular and predictable attendance, ability to work cooperatively with others, etc. as essential job functions;

4) Engage in interactive discussions with your employee by letter, email and in person about expected return to duty date, their physician opinions, fitness for duty upon return, and ability to safely perform; and\

5) Show patience and Document, Document, Document!

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 or 334-246-2901. Blog at www.alabamaatwork

Friday, April 15, 2016

Micro Unit Union Gets NLRB Traction at VW

By: Thomas Eden

Frustrated in its past attempts to organize its first foreign automaker in the South, the United Auto Workers (UAW) union has taken a new approach at Volkswagen's plant in Tennessee and succeeded on Thursday with the NLRB. 

The UAW organized just a 165-member unit of skilled-trades workers at the Chattanooga plant and now has the backing of the NRLB. A two-day vote by that smaller group of workers who repair and maintain machinery at the plant occurred on December 7, 2015 in which the skilled trades workers voted 108-44 to align with the UAW.

The UAW has been thwarted for years in its efforts to represent workers at foreign automakers such as Nissan in Tennessee and Mississippi, Mercedes-Benz in Alabama and BMW in South Carolina. While Volkswagen's international labor-friendly corporate culture has made the German automaker the UAW's top target, the union lost a hotly contested vote at the plant in early 2014 when anti-labor Republicans and outside groups became involved.

The NLRB's Atlanta regional director rejected Volkswagen's arguments that only the entire hourly workforce of 1,400 employees should be allowed to vote on union representation, not just the "micro unit" of skilled-trades workers.

In its Order issued in favor of the UAW on April 13, 2016, the NLRB found that VOLKSWAGEN GROUP OF AMERICA, INC. “failed to meet its burden of demonstrating that the additional employees it seeks to include share an overwhelming community of interest with the petitioned-for unit. The employees in the petitioned for-unit are readily identifiable as a group, as it consists of all maintenance employees employed by the Employer at its Chattanooga, Tennessee facility…they also share a community of interest under the traditional criteria—similar job functions, shared skills, qualifications, and training; supervision separate from the production employees; wages different from the production employees; hours and scheduling different from production employees; other unique terms and conditions of employment.”

Common Sense Counsel: This is the Obama Administration continuing payback initiative to Big Labor by pushing through micro unit rules that they could not otherwise have gotten through Congress. Taking the following 7 steps can help your company avoid becoming an easy target for a micro unit union campaign: 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 in surveys and small group meetings 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, 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 or 334-246-2901. Blog at and follow on twitter tommyeden3

Friday, April 8, 2016

$50,440 Minimum for Exempt Employees One Step Closer

By: Thomas Eden

On March 14, 2016, the Department of Labor (DOL) moved another step forward with the requirement that all exempt employees be paid at least $50,440 annually in order to meet the initial requirement under the Salaried Exempt test. On July 6, 2015, the DOL published a Notice of Proposed Rulemaking to update the regulations defining the exemptions for “white collar” employees under the Fair Labor Standards Act. The DOL’s proposed rule would increase the salary threshold for exempt workers from the current $23,660 to $50,440 annually, an increase of more than 113 percent. After that, the threshold would be automatically adjusted each year to provide what the DOL described as a “useful and effective test for the exemption.” Over 300,000 comments were received by the DOL.

The next step in the regulatory process was for the DOL was to send the final version of the regulations to the White House Office of Management and Budget (OMB) for review. On March 14, 2016, the DOL did just that. The OMB review period typically is 30 to 90 days. The 90-day period ending in mid-June is consistent with a prediction of an effective date early in the third quarter. Once the OMB gives its approval, the DOL is free to publish a final rule.

After the final regulation is published, the Congressional Review Act allows Congress 60 legislative days to review the regulation and enact a disapproval motion. For the regulation to be invalidated, the Congressional resolution of disapproval either must be signed by the President, or must be passed over the President's veto by two-thirds of both Houses of Congress; a non-starter for this administration.  So in reality there is no chance to stop it from becoming effective.

Common Sense Counsel: Follow these 5 steps now for some relief and solutions in June 2016: 1)  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; 2) for those salaried who will become hourly employees working 50 hours a week, consider a Fluctuating Work Week written agreement to lower your overhead cost; 3) for those who do currently meet the salary exempt test, and you still want to keep them salaried, then you will have to give them a raise to 50,440 by the third quarter of 2016 and redraft their job description; 4)  update your payroll system and handbook to help you keep day-by-day control of excessive overtime costs; and most important 5) come up with creative ways to engage and incentivize your hourly employees to think and work like owners by making yours a “great place to work.”

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 or 334-246-2901. Blog at with Links to worksheet and regulations on Blog.

Friday, April 1, 2016

Alabama Drug Testing Blunder Sinks Austal Appeal

By: Thomas Eden

On September 5, 2014, pursuant to Austal's "Drugs and Alcohol Zero Tolerance Policy" Kenneth Johnson, an electrician, was randomly selected for a drug test. Johnson submitted to a drug test ("the preliminary drug test") that was conducted on Austal's premises by a nurse employed by Austal using a rapid screen urine cup. The preliminary drug test was positive, according to court papers.  Austal immediately offered Johnson a follow-up drug test ("the second drug test") that would be administered at the Industrial Medical Clinic. Johnson refused to submit to the second drug test so Austal terminated Johnson's employment that same day.
Johnson subsequently filed a claim for unemployment-compensation benefits with the AL DOL, which was approved. Austal timely appealed that decision to an administrative-hearing officer and, subsequently, to the AL DOL Board of Appeals. Both affirmed the decision to award Johnson unemployment-compensation benefits. Austal then filed an appeal to the Mobile County trial court. The AL DOL filed a motion for a summary judgment, which was granted in favor of Johnson. Austal filed a timely notice of appeal to the Alabama Court of Civil Appeals.

Austal argued that Johnson should be disqualified from receiving unemployment-compensation benefits pursuant to § 25-4-78(3)a., Ala. Code 1975, for “…use of illegal drugs after previous warning or for the refusal to submit to or cooperate with a blood or urine test after previous warning.” However, that section requires that "[a] confirmed positive drug test that is conducted and evaluated according to standards set forth for the conduct and evaluation of such tests by the U.S. Department of Transportation in 49 C.F.R. Part 40…” The Court of Appeals observed, “…to be sure, the drug policy, as drafted, is far from a model of clarity” and “is completely devoid of an established procedure for the physical administration of a drug test.”  Amidst all the policy and refusal notice confusion, the case was sent back to the trial court to make a final determination if Johnson was given notice that he was refusing a DOT type “second drug test.”

Common Sense Counsel: this is your chance as an employer to learn from others' mistakes: 1) only use an Alabama Drug Free Workplace Policy – anything else will not “be a model of clarity” under Alabama Law; 2) if you are going to use a rapid screening device or cup – send all non-negatives to a DOT certified laboratory, using an MRO, or you will lose all your Al UC and WC disqualification cases; 3) train your HR managers on Alabama drug testing laws and Al DOL regulations; 4) have a legally drafted disqualification form ready to hand a refusing employee for signature; and 5) know who to call for counsel before you make your own drug testing blunder.

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 drafts drug testing policies in all 50 states and DOT Modes.  He can be contacted at or 334-246-2901. Link to Case on Blog at