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Tuesday, November 29, 2016

Texas Judge Refuses to Enjoin OSHA’s Post-Accident Drug Testing Final Rule Effective December 1, 2016

 By Thomas Eden

IIn high stakes litigation playing out before United States District Judge Sam Lindsey in Dallas, Texas, the government attorneys defeated several employer groups seeking to enjoin OSHA’s record keeping rule-anti-retaliation provision under 29 CFR 1904.35. Judge Lindsey ruled in his opinion that, “Plaintiffs have not demonstrated a likelihood of irreparable harm necessary for issuance of a preliminary injunction. Plaintiffs’ evidence is based almost entirely on unsupported beliefs, unfounded fear, and speculation regarding the general efficacy of mandatory post-accident drug testing and incident-based safety incentive programs, which are insufficient to establish a substantial threat that irreparable harm will occur if a preliminary injunction is not granted.”

Below is the delay of enforcement memorandum sent on October 18, 2016, to all OSHA Regional Administrators from Deputy Assistant Secretary Dorothy Dougherty:

The final rule to Improve Tracking of Workplace Injuries and Illnesses contains three new employee involvement provisions that address employer conduct that could discourage employees from reporting work-related injuries or illnesses. The final rule clarifies the existing implicit requirement that an employer's procedure for reporting work-related injuries and illnesses must be reasonable and therefore must not deter or discourage reasonable employees from reporting work-related injuries or illnesses (1904.35(b)(l)(i)); requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation ((b)(l)(ii)-(iii)); and incorporates into Part 1904 the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses ((b)(l)(iv)). These provisions became effective on August 10, 2016.
OSHA initially delayed enforcement of these provisions until November 1, 2016, to allow time for additional outreach to the regulated community. On October 14, 2016, the United States District Court, Northern District of Texas, asked OSHA to further delay enforcement through December 1, 2016 to allow additional time to consider a motion pending before the court in a case challenging the new provisions, TEXO ABC/AGC Inc. v. Perez, No. 3:16-cv-01998-D (N.D. Tex.). OSHA has agreed and will delay enforcement of the employee involvement provisions of the final rule until December 1, 2016.
This final regulation, if not enjoined, will on December 1, 2016, impact employer post-accident drug testing nationwide. For guidance, see Constangy’s Don’t Panic! Employers Should be Able to Continue Most Post-accident Drug Tests under OSHA’s New “Reasonable Reporting Procedure” Rule.

 On October 19 OSHA Released Updated Guidance:

Improve Tracking of Workplace Injuries and Illnesses – Employee's right to report injuries and illnesses free from retaliation

One of the goals of this recordkeeping rule is to improve the completeness and accuracy of injury and illness data collected by employers and reported to OSHA. When workers are discouraged from reporting occupational injuries and illnesses, the information gathered and reported is incomplete and inaccurate.

The rule includes three provisions that are intended to address this issue:

(1) An employer's procedure for reporting work-related injuries and illnesses must be reasonable and must not deter or discourage employees from reporting

(2) Employers must inform employees of their right to report work-related injuries and illnesses free from retaliation

(3) An employer may not retaliate against employees for reporting work-related injuries or illnesses

Injury Tracking and Use of Disciplinary, Incentive or Drug Testing Programs

The rule does not ban appropriate disciplinary, incentive, or drug-testing programs as described below.

However, it allows OSHA to issue citations for retaliatory actions against workers when these programs are used to discourage workers from exercising their right to report workplace injuries and illnesses. Employers should review their reporting procedures, programs, and policies for elements that may result in retaliatory actions against an employee for reporting an injury or illness.

Disciplinary Programs

Incentive Programs

Drug Testing Programs

A 10/19/2016 memorandum provides further guidance on the basic principles of these requirements.

Common Sense Counsel: Eliminating Employer Confusion over Post-Accident Drug Testing Decisions

OSHA’s interpretation of its new reporting regulation is generating confusion among employers and supervisors who are concerned that they will be prohibited from conducting any post-accident drug tests.

5  Common Sense Steps to Eliminate Employer Confusion in light of latest OSHA Post-Accident Drug Testing Guidance:
1. Adopt a DFWP policy, in accordance with the State Laws, in order to reduce insurance premiums is not retaliatory and therefore seems permissible under §1904.35(b)(1)(iv), even though employers are not literally required by state or federal law or regulation to implement drug-free workplaces Because the motivation to take advantage of state DFWP statutes is to reduce insurance premiums or disqualification of workers’ compensation claims for statutory violations, such policies are likely to be viewed by OSHA as compliant. Having the State Agency, or attorney, written certification is highly recommended. Well Drafted BEST Practices DFWP Guidance:
  • Should meet State DFWP Laws and be customized for your business
  • Should cover WC and UC Disqualifications 
  • Should deal with Medical and Recreational Marijuana Issues
  • Should handle pre-duty prescription medication disclosure under the ADA
  • Should cover this new OSHA guidance
  • Should be easy to read and understand by employees and supervisors
  • Should include all required pre-employment and active employee sign-off forms, checklists, notices and specimen documents (last chance agreement)

2. Including Disqualification for a Post-Accident Positive or Refusal language under the States’ Workers Compensation in your DFWP is a wise step to be able to show testing for a lawful and permissible purpose – reduction of workers’ compensation cost and encourage an unimpaired drug free workforce. Under Section 4 of the OSH Act employer rights concerning Workers Compensation are outside of OSHA’s jurisdiction

3. For those employers who are simply accepting an insurance carrier’s premium discount offer that includes mandated post-accident drug testing for reportable injuries, or required to be part of a self-insured workers’ compensation fund, in the absence of a State certified DFWP statute, the arrangement requiring post-accident testing should be captured in writing.

4. Adopt a customized confidential post incident/accident report form that captures:
  • The how, when, who and why of the incident/accident
  • Did the employee’s action, or in-action, contribute to the incident/accident, or cannot be completely discounted as a contributing factor?
  • Include in checklist “triggers” matching your new post incident/accident testing circumstances or events
  • Include in your checklist dual supervisor sign-offs
  • Completed form is evidence of legitimate, non-discriminatory reason for the adverse action; i.e. post-accident drug test

5. Train supervisors, safety, HR and line managers on:
  • Your new Post incident/accident drug testing criteria
  • How to utilize your new Post incident/accident drug testing report
  • Train your Drug Testing TPA, Occupational Physicians’ offices, post-accident clinics to ask if the Report has been completed as part of their authorization to conduct post-accident testing
  • Train supervisors on reasonable suspicion testing & reasonable possibility testing and provide them checklist for both
  • Train HR and supervisors on the use of last chance agreements as a risk reduction strategy

Constangy is here to Help Employers - Don’t Panic!
  • Employers Should Be Able to Continue Most Post-Accident Drug Tests Under OSHA’s New “Reasonable Reporting Procedure” Rule
  • Constangy Workplace Drug & Alcohol Testing Group can help you with DFWP Compliant Policies in all 50 states
  • Can help update your current post incident/accident testing language to include the “triggers” to reduce the risk of OSHA citations
  • Can prepare a customized confidential post incident/accident report form
  • Can train your supervisors on reasonable possibility with customized checklist
  • Constangy can advise you on OSHA inspections, risk reduction steps to avoid OSHA retaliation claims, OSHA citation responses, etc.
 For a free recorded EBI webinar on this topic, click here.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and can be contacted at or 334-246-2901. Constangy, Brooks, Smith & Prophete, LLP has been representing the interests of employers for 70 years.  If you have questions about how your relationships are implicated in the employment law arena, please contact me or any of our attorneys.

Wednesday, November 23, 2016



The new regulations that would have more than doubled the salary threshold for Administrative, Executive, and Professional exemptions from the minimum wage and overtime requirements of the Fair Labor Standards Act – due to take effect on Thursday, December 1 – have been preliminarily enjoined nationwide by a federal court in Texas.
This means that the regulations will not take effect on December 1, although it is possible that they could be revived at some later date.

Ellen Kearns has a comprehensive summary of the Rule here. Some months after the regulations were issued in May 2016, two lawsuits were filed challenging the validity of the new regulations: One, Nevada v. U.S. Department of Labor, by a group of 21 states, and the other, Chamber of Commerce of Plano v. Perez, by the U.S. Chamber of Commerce, local chambers, and a number of other business groups. Both cases were pending in federal court in Sherman, Texas.

The “state plaintiffs” filed a motion for the court to preliminarily enjoin (block) the regulations from taking effect. The “business plaintiffs” filed an emergency motion for summary judgment.

Judge Amos Mazzant heard arguments in the consolidated cases on November 16 and said he would try to have a decision issued yesterday. And he certainly did.

The state plaintiffs had argued that the Tenth Amendment to the U.S. Constitution deprived the U.S. Department of Labor of the authority to impose these regulations on states. Judge Mazzant rejected that argument, and found that the DOL did have such authority.

However, Judge Mazzant found that the plaintiffs were likely to succeed in their argument that the DOL lacked authority under 29 U.S.C. Section 213(a)(1) to use a salary threshold to determine whether an employee qualified for the so-called “EAP” exemptions. Rather, he ruled, the DOL had authority only to adjust the “duties” components of the exemptions as they might evolve over time. As most employers know by now, the regulations made no changes to the existing duties tests but only raised the salary and compensation thresholds. Indeed, the DOL said that, with limited exceptions, an employee would not qualify for exemption if he or she was not paid the new minimum salary, regardless of his or her job duties. According to Judge Mazzant, this creates “essentially a de facto salary-only test,” which conflicts with Congressional intent: “If Congress intended the salary requirement to supplant the duties test, then Congress, and not the [DOL], should make that change.”
Thus, he concluded, the regulations were “contrary to the statutory text [of the FLSA] and Congress’s intent.”

The plaintiffs had also challenged the automatic indexing of the thresholds, which would have begun on January 1, 2020. Because he found that the entire Final Rule was unlawful, Judge Mazzant found that the indexing was unlawful, as well.
The Judge also found that the plaintiffs had shown that they would suffer irreparable harm if the regulations were allowed to go into effect on schedule, noting that compliance would cost the states millions of dollars, which might require state agencies to reduce services to be able to comply. (According to the decision, approximately 50 percent of the employees in the Kansas Department for Children and Families and Kansas Department of Correction would have been affected by the new regulations.)

Given the above, it is not surprising that he also found that the balance of hardships and the public interest favored the plaintiffs.

As already noted, this is a preliminary injunction, which means that Judge Mazzant will have to make a final determination in the future. It is possible that the final outcome could be different. Even if it is not, the DOL can be expected to appeal to the U.S. Court of Appeals for the Fifth Circuit, which may or may not agree with Judge Mazzant.

Complicating matters even further, on January 20, President-Elect Donald Trump will take office, presumably with a Department of Labor whose new senior leadership will not view this issue the same way that the Obama Administration did. It is possible that a Trump Administration will simply decide to abide by Judge Mazzant’s decision and let the matter drop, or use the delay to open a new rulemaking proceeding to further revise the regulations. It is also possible that the delay will allow a new Congress to pass legislation that will effectively override the regulations.

Given all of the above, the big question most employers will have is whether to put their plans on hold to make changes to comply with the new regulations on December 1. We cannot say that Judge Mazzant may not later change his preliminary ruling, or that the Fifth Circuit may not reverse his ruling. Either situation could result in the potential for exposure to back wage and liquidated damage claims in individual or collective action lawsuits brought by private parties. However, the risks would appear to be fairly low if the Trump DOL or Congress takes action before the regulations could become effective due to subsequent court rulings.

Friday, November 18, 2016

What to Expect Immigration Wise from President Trump and AG Sessions?

By Thomas Eden

The pick of Senator Jeff Sessions as Attorney General, and his acceptance, should be a strong law and order signal to all employers. Here is what employers can expect Immigration Wise.

Border Wall: there are recent indications that at least part of the border wall might become a border fence, a possibility that Trump mentioned in his recent 60 Minutes family interview.

Mass Deportations: Trump will deport up to 3 million criminals living in the U.S. illegally immediately upon assuming office.

Mandatory Detention: Trump has promised mandatory detention of "anyone who illegally crosses the border."

Comprehensive Immigration Reform: Kris Kobach (who drafted Alabama’s Immigration Reform Act) is to advise Trump’s transition team on immigration policy so it is safe to assume that there will be no comprehensive effort during the Trump presidency to legalize the population of people living in the country illegally. However, a robust guest worker program is highly likely.

NAFTA: If in fact Trump chooses to withdraw as opposed to renegotiating, TN Visa status for Canadians and Mexicans would cease to exist.

Employment-Based Immigration: Trump's 10-point plan is to "reform legal immigration to serve the best interests of America and its workers, keeping immigration levels within historic norms." However, we can glean a few morsels from the recent news:

H-1B: The H-1B current annual quota of 85,000 is vastly insufficient to meet current demand by U.S. businesses. Trump has expressed support for skilled, legal immigration, but he has proposed a wage floor for the H-1B category, and a requirement that employers show that they have not been able to find U.S. workers before sponsoring foreign workers for H-1B positions.

Optional Practical Training (OPT): Sen. Sessions last year introduced a bill eliminating OPT (the 12-month period of work authorization available after completion of a U.S. degree, followed by an additional 24 months for some science, technology, engineering and math (STEM) graduates).

Enforcement: employers should expect a sharp increase in workplace enforcement (Workplace Raids and I-9 Audits) during the Trump administration. This will include worksite raids by U.S. Immigration and Customs Enforcement to identify, detain and deport those without work authorization; audits of I-9 files by ICE to confirm corporate compliance with employment verification rules; visits by the Fraud Detection and National Security (FDNS) Directorate at U.S. Citizenship and Immigration Services to confirm that companies are adhering to the requirements of nonimmigrant visa programs such as the H-1B and L-1; and site visits by the U.S. Department of State to confirm compliance with J-1 program regulations.

E-Verify and Biometrics: E-Verify, the federal government's electronic employment eligibility verification system, and biometric data to track immigrants. Expect more of such electronic enforcement initiatives during the Trump Presidency.

Common Sense Counsel: stay informed. However, ramping up now your Form I-9 Auditing, Immigration Policy update and Supervisor Training will be time and money well spent.

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. Tommy can be contacted at or 334-246-2901. Blog at

Thursday, November 10, 2016

What to Expect Employment Wise from President Trump?

By Thomas Eden

Mr. Trump’s views on immigration are well known: In addition to “the Wall,” he favors making E-Verify a national requirement, raising the prevailing wage for workers under the H-1B visa program (to make American workers more competitive with their H-1B counterparts), and requiring that employers hire (or, at least, try to hire) Americans before seeking to hire foreign nationals. Employers can expect ICE audits to ramp up in the first 100 days.

Mr. Trump has expressed support of right-to-work aimed at preventing foreign workers from competing with Americans for jobs.

Mr. Trump said in July that he would favor an increase of the minimum wage to $10 an hour but thinks states should be able to vary from that.

On LGBT equal employment opportunities, Mr. Trump signaled support for LGBT rights when one of the featured speakers at the Republican Convention was Peter Thiel, co-founder of PayPal, who is openly gay.

Mr. Trump favors paid maternity leave (women only, for recovery from childbirth) for six weeks immediately after the birth of a child. He also wants to make child care tax deductible, and favors an Earned Income Tax Credit for lower-income families who need child care.

Mr. Trump has promised to roll back the employment regulations implemented by President Obama. The two most depressing regulations for employers on the horizon are OSHA's post-accident reasonable possibility drug testing rule which becomes effective December 1, 2016. The other regulation throwing employers into a tailspin, also effective December 1, 2016, is the doubling of the salary threshold for exempt employees to $47,476. Of course Obamacare is the most full-time employee job killing act ever passed. I predict that Mr. Trump will seek to rollback all three.

Mr. Trump with regards to marijuana legalization has stated that he supports a state’s rights to choose how to legislate medical marijuana and is in favor of medical marijuana 100%. But he has called Colorado's legal marijuana industry a "real problem."

Common Sense Counsel. From an employment law perspective, I predict that Mr. Trump will be the friend of the hard American working wage earner, the struggling single mom, the LGBT community, federal contractors under the Obama politically correct pen and business entrepreneurs of all description. He will likely be on the other side of the fence from wall street fat cats, foreign employers who take advantage of, or disrespect, workers, regulators who do not listen to legitimate employer concerns and union bosses who do not bring a “can do” attitude to the table. This was a brick through the showroom window movement and I do not expect Trump will depart from his stated mission.

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. Some quotes contained in the column were taken from a Constangy Blog Post by his law Partner Robin Shea. Tommy can be contacted at or 334-246-2901. Blog at

Thursday, November 3, 2016

Marijuana Ballot Update 2016

By Thomas Eden

With only days to go until the Presidential election and with nine states voting on marijuana legal reform, these are the nine marijuana ballot initiatives up for vote on November 8:

Arizona: Arizona has had a medical marijuana program since 2010, but its voters will soon get to decide on Proposition 205 to regulate marijuana like alcohol for adults 21 and older.

Arkansas: Issue 6, known as the Arkansas Medical Marijuana Amendment of 2016, would allow certain qualifying patients to access medical marijuana and create a regulatory system for cultivation, manufacture, and distribution of medical marijuana.

California: California’s vote on Proposition 64 will regulate and tax recreational marijuana like alcohol. It is expected that California’s recreational cannabis economy will be at least ten times larger than Washington State, which currently has the highest legal recreational cannabis sales.

Florida: Florida first tried, but failed, in 2014 to pass a medical marijuana constitutional amendment. Florida requires a 60% supermajority vote for constitutional amendments. The 2016 Use of Marijuana for Debilitating Medical Conditions ballot has clearer language regarding regulation and oversight of medical marijuana businesses, qualifying patients, and caregivers.

Maine: Question 1 is Maine’s recreational marijuana initiative. Maine has had medical marijuana since 1999 but Question 1 will legalize recreational cannabis for adults over 21 via “a tightly regulated system of licensed marijuana retail stores, cultivation facilities, product-manufacturing facilities, and testing facilities, and it will create rules governing the production, testing, transportation, and sale of marijuana and marijuana-related products.”

Massachusetts: Massachusetts has had regulated medical marijuana only since 2013. Question 4 will regulate and tax adult use of marijuana like alcohol, creating a licensing system for cultivators, manufacturers, and dispensaries.

Montana: Montana initially approved medical marijuana by ballot initiative in 2004. Initiative 182 will authorize the Montana Department of Public Health and Human Services to register, license, regulate, and oversee “providers” of medical marijuana who may cultivate, manufacture, and dispense medical marijuana.

Nevada: Nevada already regulates medical cannabis but will now be voting on recreational marijuana. Nevada’s Question 2 will allow adults over 21 to possess up to one ounce of marijuana flower or one-eighth of an ounce of concentrated marijuana with Nevada’s Department of Taxation regulating its legal cannabis market.

North Dakota: Measure 5 proposes a program that “would create identification cards with specific criteria before they can be issued by the Department of Health for patients, caregivers, compassion centers and other facilities. The Act would create procedures for monitoring, inventorying, dispensing, and cultivation and growing of marijuana to be regulated and enforced by the Department of Health.

Common Sense Counsel: This should make your late night election watching just that much more interesting as the Millennial Generation continues to transition our society.

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.