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Friday, October 28, 2016

5 Steps to Bullet-Proofing your Employee Discharge Decision


By Thomas Eden

This week one of our local Circuit Judges taught me a lesson on how important the process of creating an effective and defensible termination paper trail truly is. The most common question I am asked is “how do I (fairly and respectfully) fire someone without getting sued, or win the case if I do?” A good employer establishes written workplace rules for conduct, safety, appearance, etc. (Employee Handbook is the best place to give notice) and when those established rules are not followed the employer takes action. First, by disciplining the employee in an effort to bring the person back in compliance with the rules or expectations. Second, by terminating a non-performing employee or one who has engaged in workplace misconduct. Harder than it sounds.

The following is a short checklist an employer may consider before terminating an employee so that you can prove "just cause" before any fact-finder; i.e. grievance panel, EEOC, DOL, UC, Court, Jury, Arbitrator, etc. A “just cause” termination is the highest standard of proof that may be required in an employment case. Meet it and you typically will win before any fact finder. Written proof that you followed each one of these steps is a critical component to ultimately prevailing:

1)         Can you prove that the employee had fair notice of the rules or standards of conduct or production standards?
·    Have the rules been given to the employee, either orally or in writing? (Updated Employee Handbook with signed acknowledgement preferred; training log is even better)
·    Are the rules related to the employer’s legitimate interests, e.g., customer loyalty, productivity, safety, security?

2)         Did you conduct a fair investigation before a decision was made?
·    After learning of the employee’s misconduct, did the employer promptly conduct an investigation? (24-48 hours to get started is best)
·    Was the employee notified of the alleged misconduct? In writing?
·    Was the employee given a chance to respond to the allegations?
·    Did the employer investigate any claims made by the employee?
·    Was there substantial evidence, after the investigation, of a rules violation you can identity in the Employee Handbook?
·    Did you examine the employee’s personnel file? Including evaluations?
·    Did you circle back around to fully investigate, and document, all issues raised by the employee in discharge meetings and separation interviews?

3)         Were you consistent in the manner in which discipline was administered?
·    Have other employees been disciplined for the same or similar violation?
·    If so, have they received the same or similar discipline?
·    Level of discipline for classes of offenses clearly set forth in Handbook?

4)         Did you first utilize progressive discipline?
·    Is the proposed punishment reasonable in light of the violation?
·    Will the discipline put the employee back in compliance with the rules (signed discipline receipt by employee is best way to show notice)?
·    Will it encourage other employees to follow the rules?
·    Should the employee receive a warning and a second chance for a minor violation or is a violation so gross as to require immediate discharge?
·    Are there any mitigating circumstances, e.g., good work attendance, seniority, good disciplinary history, remorse by the employee?
·    If the rule has not been previously enforced, have your given fair notice that will be in the future, i.e., righting the ship?
·    Have you consulted an experienced HR professional or employment attorney before discharging a protected category employee?

5)         Have you developed an objective and respectfully worded paper document trail proving you followed each one of the above steps? If so, congratulations you may have conducted a "just cause" termination and can sleep better at night.

Tommy Eden is an attorney with the local office of Constangy, Brooks, Smith & Prophete, LLP 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 205.222.8030.

Friday, October 14, 2016

Judge In OSHA Drug Testing Case May Grant Breather to 12.1.16

Trucking Company Wins Sleep Apnea Challenge

By Thomas Eden
In 2010, Crete Carriers began a sleep apnea program based primarily on two Federal Motor Carrier Safety Administration (FMCSA) advisory committees—the Medical Review Board (MRB) and Motor Carrier Safety Advisory Committee (MCSAC) recommendations. Under the regulations, drivers must get medical examinations from FMCSA-certified examiners every two years. Drivers cannot operate commercial motor vehicles unless an examiner certifies them as physically qualified to do so. 

During this examination—a “DOT physical”—the examiner measures height and weight; takes a health history; tests vision, hearing, blood pressure, and urine; and physically examines numerous body systems. To receive certification, a driver must not have impairments that interfere with driving.

The Crete Carriers’ program required drivers at risk for obstructive sleep apnea to undergo in-lab sleep studies. Drivers found to have obstructive sleep apnea were placed on a treatment regimen. Crete implemented the program in stages, first at larger terminals and then at smaller facilities.

Crete added Robert Parker’s facility in Nebraska in July 2013. Crete hired Parker as an over-the-road truck driver in 2006. Crete told Parker that, due to his size, it was scheduling him for an in-lab sleep study. Crete required an in-lab sleep study if either (1) the driver’s BMI was 35 or above, or (2) the driver’s physician recommended a sleep study. At Parker’s most recent DOT physical, his BMI was over 35.

On July 11, 2013, Parker visited a certified physician assistant not affiliated with Crete, who wrote a statement, “I do not feel it is medically necessary for Robert to have a sleep study.” The next week, Parker refused Crete’s required sleep study. Crete took Parker out of service. The next day, Parker gave the physician assistant prescription statement to Crete. Crete did not reinstate Parker.

Parker then sued Crete in Federal Court in Nebraska, alleging it required a medical examination violating the Americans with Disabilities Act, and discriminated against him because it regarded him as having a disability. Crete moved for summary judgment based on a sleep apnea medical expert affidavit. In granting the motion, the district court relied on the expert’s discussion of the danger posed by drivers with obstructive sleep apnea.

Common Sense Counsel: This week the 8th Circuit Court of Appeals found in favor of Crete holding that “when an employer requires a class of employees to submit to a medical exam, it also “must show that it has reasons consistent with business necessity for defining the class in the way that it has.” An employer satisfies this burden by showing a “reasonable basis for concluding” that the class poses a genuine safety risk and the exam requirement allows the employer to decrease that risk effectively. All that is required is that “the employer has defined the class of employees reasonably.” As the saying goes, having a qualified medical professional render a correctly worded expert medical opinion, under the ADA, before you take adverse employment action - “Priceless!”

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 link to full case.

Friday, October 7, 2016

Transgender Confusion Brings Litigation

By Thomas Eden

The Clark County, AZ School District hired Bradley Roberts as a campus monitor in 1992. At that time, he was known as Brandilyn Netz and wanted to be a police officer.  In 1994, Roberts graduated from the Police Academy and was hired by the District as a police officer.  Roberts held that position without incident for seventeen years.

In 2011, Roberts began dressing for work like a man, grooming like a man, and identifying himself as a man.  And he started using the men’s bathroom at work.   When others complained that a woman was using the men’s bathroom, Roberts’s commanding officers scheduled a meeting with him.   Roberts confirmed that it was him and explained that he was transgender and in the process of transitioning into a man.  He also told them that he wants to be known as Bradley Roberts and use the men’s bathroom. But Roberts’s commanding officers told him that he could not use the men’s rooms and that he should confine himself to the gender-neutral restrooms “to avoid any future complaints.” 
In response, Roberts sent a letter to his superiors again explaining that he was changing his name to Bradley J. Roberts, wanted his coworkers to use male pronouns to reference him, and that he would comply with the men’s grooming code.

The District responded to Roberts’s letter by holding a second meeting in November 2011, with which included Roberts’ his union representative.  Roberts repeated his requests: he wanted his coworkers to refer to him as a man, and he wanted to use the men’s restrooms.   His Captain said no, as far as the District was concerned, Roberts would not be referred to as a man or allowed to use the men’s restroom until he could provide official documentation of a name and sex change.
Later they decided that Roberts could informally use a man’s name for the time being, but that “all official and formal documents” would contain his female name until he obtained a court order and a name-change packet from human resources. Roberts was banned from the men’s restrooms until he had documented his sex change. Until then he was directed “to use a gender-neutral or single occupancy restroom,” not the female restrooms.

This week a Nevada Federal District Judge ruled that the District discriminated against Roberts under Title VII of the Civil Rights Act and state law when it barred him from using the men’s and women’s restrooms, but rather requiring that he use gender-neutral or single-person bathrooms. The decision appears to be the first time that a court has interpreted those protections to mean that transgender employees have a right to use bathroom facilities that match their gender identity.

Common Sense Counsel: Updating your handbook language to cover gender identification and sexual orientation language should be one of your first priorities, with updated training, deciding now on restroom solutions and finding a source for guidance when confusion reigns in your workplace. Transgender Discrimination is an EEOC litigation hot button issue for 2016-2017.

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