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Friday, June 23, 2017

What Gets Measured Gets Improved

Image result for moneyball
By: Thomas Eden

Management consultant Peter Drucker said these words more than 40 years ago, and they are at the heart of what Google does to produce Great Teams and Great Bosses.

Fans of Brad Pitt, playing Oakland A’s Baseball Coach Billy Beane, will remember the lessons of Moneyball. For over a century, baseball managers were using the wrong metrics to make management decisions to draft professional baseball players. Moneyball tells the story of desperate risk taking coach who changed everything for major league baseball player selection.  Enter Peter Brand, a computer whiz with an economics degree from Yale. With his glasses and middle-management jackets, Peter looked like he should be crunching numbers at an accounting firm. But he had a baseball clutched in his hand, a love of the game in his heart and he wanted to throw the world a digital age curveball.

In 2001 the A’s finished second in the American League West, but that October, in the game that opens the movie, they lost the Division Series to the New York Yankees. The score was 5-3, but the numbers that flashed across the screen — $114,457,768 vs. $39,722,689 — was the payroll of each team. With Peter Brand’s computer whiz metrics, Coach Beane helped transform the Oakland A’s, one of the poorest in baseball, into serious competition for the wealthiest franchises. He did it by ignoring everything he’d been taught about the game and instead relied on the data. When the old scouts talk about a minor league player with the perfect baseball look, Coach Beane admonished them,Your goal shouldn't be to buy players, your goal should be to buy wins.” When Peter is asked by Coach Beane why he likes a certain player, he responds – “Because he gets on base.”
When evaluated based on the metric proposed in Moneyball, the “slugging percentage,” became like Google’s use of “Objective and Key Results,” or OKRs. By having access to OKRs, Google tests and tweak strategies, analyzes the results, refines their strategy and repeats. The results must be specific, measurable, and verifiable.It does it for everything from how applicants are located, team members are interviewed four times by a cross section of people, they are on boarded with a first day one-on-one with their new team leader, Upward Feedback Survey of their boss - you name it Google measures it.  

What Google discovered by use of Big Data, was what Peter Drucker knew 40 years early ago. Google used Mission + Transparency + Voice + Big Data to create in 20 short years one of the most world changing companies to ever exist. Google’s Mission is to “take the world's information and make it universally accessible and useful.” How many times each day does Google exceed your expectations. Coach Beane remarks at the end of the Moneyball, we're going to change the game." Follow Google’s Big Data blueprint for success and your team might just might hit it out of the park!

Want to Learn More? Attend Great Teams + Great Bosses + Happiness = Competitive Advantage! TUESDAY, JUNE 27, 2017, 11:00 AM - 1:00 PM.  $25 Lunch is included; LOCATION Saugahatchee Country Club 3800 Bent Creek Rd, Opelika, AL; SPEAKER Tommy Eden, Esq. - Constangy, Brooks, Smith & Prophete, LLP. Registration link at or email

Thursday, June 15, 2017

The Mark of the Beast: The Rest of the Story

By: Thomas Eden

Consolidation Coal Company in West Virginia installed an attendance tracking system for payroll purposes at their Robinson Run Mine that requires employees to electronically sign-in using a biometric hand scanner. This technology creates and stores electronic information about an individual’s hand geometry for purposes of future identification.

Employee Beverly Butcher is an Evangelical Christian with 35 years of service at the Mine. When faced with the biometric logging in, he stated that he had a genuinely held religious belief that would not permit him to submit to biometric hand scanning. Butcher then provided his manager with a letter that he wrote discussing his genuinely held religious beliefs about the relationship between hand scanning technology and the Mark of the Beast and antichrist discussed in the Bible, and requested exemption from hand scanning because of his religious belief.

His managers later responded by handing Butcher a letter written by its scanner vendor, Recognition Systems, Inc., addressed to “To Whom it May Concern.” The vendor’s letter discussed the vendor’s interpretation of Chapter 13, Verse 16 of the Book of Revelation contained in the Bible; pointed out that the text of that verse references the Mark of the Beast only on the right hand and forehead; and suggests that persons with concerns about taking the Mark of the Beast “be enrolled” with their left hand and palm facing up. The letter concludes by assuring the reader that the vendor’s scanner product does not, in fact, assign the Mark of the Beast.

Butcher proposed that he continue submitting his time and attendance manually as he had previously done, or that he be permitted to check in and check out with his supervisor. At a later meeting, his managers proposed that Butcher should submit to hand scanning of his left hand turned palm up rather than his right hand. Butcher rejected their offer stating that he is prohibited by his religion from submitting to scanning of either hand. The managers declined to accommodate Butcher’s request to be exempted from the biometric sign-in telling him that he would be subject to disciplinary action if he refused to use the biometric hand scanning system.

Butcher promptly retired and specifically informed his managers that he was retiring involuntarily, telling them that he was retiring under protest and felt that he had no choice but to retire because of their refusal to grant an exemption from biometric hand scanning.

At least two persons employed at the Robinson Run Mine at the time that Butcher requested religious accommodation were permitted exemptions from biometric hand scanning due to missing fingers. These two persons were permitted to submit their time and attendance by other means.

After hearing the above story, a jury awarded Butcher nearly $600,000 in the EEOC’s suit filed in West Virginia U.S. District Court alleging religious discrimination under Title VII of the Civil Rights Act of 1964.  The rest of the story is that this week the 4th Circuit Court of Appeals affirmed the jury’s award rejecting consol’s “Mark of the Beast” appeal saying that “it is neither the employer’s nor the court’s place to question the correctness or even the plausibility of Butcher’s understanding of religious doctrine”.

Common Sense Counsel: A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his/her religion and still work. An employer might accommodate an employee's religious beliefs or practices by allowing flexible scheduling, voluntary substitutions or swaps, or modification of login requirements.  Religious discrimination is a hot button issue for the EEOC. Have a well drafted employee handbook, dress code, job description with essential functions and be in an “accommodating” mood when employees approach you quoting scripture. Engaging in a bible sword drill with your employees in the interactive meeting is not a wise strategy. 

Thursday, June 8, 2017

U.S. Department of Labor withdraws Obama guidance on independent contractors, joint employment

Image result for joint employer

The U.S. Department of Labor announced June 7, 2017 that it has withdrawn informal guidance issued by the Obama Administration related to independent contractors and joint employment. The guidance on independent contractors was issued in 2015, and the guidance on joint employment was issued in 2016, both in the form of so-called “Administrator’s Interpretations,” which was a form of guidance the DOL adopted when it ended the longstanding practice of issuing Opinion Letters.
Here is the government’s news release from the DOL website:

U.S. Secretary of Labor Alexander Acosta today announced the withdrawal of the U.S. Department of Labor’s 2015 and 2016 informal guidance on joint employment and independent contractors. Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law. The department will continue to fully and fairly enforce all laws within its jurisdiction, including the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act.

Common Sense Counsel: This development is welcomed news for all businesses who seek to legally distance themselves from the independent contractors and temporary employment services they utilize. However, the terms of the independent contractual agreements and temporary staffing contacts, are still critical to reducing the risk of being considered a joint employer under a variety of state and federal laws.

This article originally appeared as a Constangy Bulletin drafted by  Constangy law partners, James M. Coleman and Robin E. Shea.

Wednesday, May 31, 2017

Happiness as a Competitive Advantage

By: Tommy Eden

 A positive and engaged brain is a competitive advantage, according to author Shawn Achor in his book Before Happiness. Shawn’s 5 Hidden Keys to Achieving Sustainable Positive Change, and a Competitive Advantage, are: 

1) The Most Valuable Reality. Help your team see a broader range of ideas and solutions by changing the details on which their brains choose to focus. Your brain has only a limited capacity to focus on what is going on in your world and if your brain goes to the negatives, then the positives will be crowded out. The ADVANTAGES game takes a negative, like a sink full of dirty dishes, and turns that into an opportunity to show my wife love. Have your team play the game like this, give one point for all the negative descriptors for that “choice” and three points for positive descriptors. Multiple positive visions will give your team the opportunity to choose to make it a meaningful and productive activity. By priming your team members’ brains with positive alternatives, grateful hearts or a memory that makes them smile, sales can rise by 31 % and you are more likely to be promoted by 40%. 

2)  Success Mapping. Set goals oriented around the things in life that matter to you most. Sometimes when we are coming into a stressful situation your team looks for a way to escape. If you will help your team think of stresses as meaningful challenges, then they become opportunities for the team to win. Encourage team members to embrace the challenge, and channel the meaning buried within the stressor. That way they can make their own team map toward success. 

3) Positive Inception Transfer. Positively planting a thought in the mind of another can cause the other person to see the world in a more positive light. For example, Oshsner Health Systems implemented the 10/5 Way requesting that staff at 10 feet of a patient make eye contact, then smile and to say hello when they were 5 feet away. Six months after picking up this small habit, the patients entering the hospital started picking up this social script of eye contact, smiling, and then hello. Not only did the patient referrals increase, doctors’ happiness levels were higher than in a decade and the patients’ perception of quality of care improved dramatically.  Once others found out it was OK to be positive they joined in on the new social script. Employees are 31% more productive, 3 times more creative, and had higher levels of energy when they choose to first make others happy. 

4) The X-Spot. Use success accelerants to propel your team more quickly towards its goals. When you can see a goal then you speed up and accelerate to the finish. That is why most heart attacks for marathoners occur in the last 100 yard of a 26.1 mile run. Sometimes just taking time to recall and be thankful for your teams past successes will accelerate the team to achieve the next goal. 

5) Noise Canceling. How do we turn our brains into noise cancelling headphones? External noise makes you feel more negative. Worry is an example of internal negative noise that will not let your team focus on the present. By increasing the positive things your team watches and surrounds themselves with, you will help them put on their noise cancelling headphones. Mind PT is one of the techniques suggested by the author for this purpose: Mind PT is a free app available for download on itunes.

Common Sense Counsel: if Happiness is the joy you feel moving toward your potential, the science of happiness as practiced by Google is the secret sauce that gives it a competitive advantage so that each Google employee brings in 1 million of income. Great Teams + Great Bosses + Happiness = Competitive Advantage.

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 and blog at

Friday, May 26, 2017

Build a Better Boss – Don’t Buy Them

 Project Oxygen started at Google in 2009 with basic assumptions
·         People typically leave a company for one of three reasons, or a combination of them;
·         The first is that they don’t feel a connection to the mission of the company, or sense that their work matters;
·         The second is that they don’t like or respect their co-workers;
·         The third is they have a terrible boss — biggest variable;
·         Google, saw huge swings in the performance reviews ratings that employees gave to their bosses; and
·         Managers had a much greater impact on employees’ performance and how they felt about their job more than any other factor.

In Project Oxygen Google made it all about data
·         the statisticians gathered more than 10,000 observations about managers across more than 100 variables, from various performance reviews, feedback surveys and other reports;
·         Then they spent time coding the comments looking for patterns;
·         Once they had some working theories, they interviewed managers to gather more data looking for evidence that supported their notions; and
·         The final step was to code more than 400 pages of interview notes and then they spent time rolling out the results to employees.

8 Qualities Identified by Project Oxygen to build a Better Boss

The final result was eight behaviors -- things great managers do that make them great. They are, in order of importance:

1. Be a good coach.
2. Empower; don't micromanage.
3. Be interested in direct reports, success and well-being.

4. Don't be a sissy: Be productive and results-oriented.
5. Be a good communicator and listen to your team.
6. Help your employees with career development.
7. Have a clear vision and strategy for the team.
8. Have key technical skills so you can advise the team.

Once Google had its list, the company started teaching it in training programs, as well as in coaching and performance review sessions with individual employees. It paid off quickly. Google was able to have a statistically significant improvement in manager quality for 75 percent of its worst-performing managers,

What employees valued most were even-keeled bosses who made time for one-on-one meetings, who helped people puzzle through problems by asking questions, not dictating answers, and who took an interest in employees’ lives and careers.

From Worst Boss to Better Boss
One manager who employees seemed to despise because they found him bossy, arrogant, political, secretive, became a turn-around story. Many wanted to quit his team. They said he was brilliant, but he did everything wrong when it came to leading a team. Because of that heavy hand, this manager was denied a promotion he wanted, and was told that his style was the reason. But Google gave him one-on-one coaching, rather than hiring from the outside. Six months later, team members were acknowledging in surveys that the manager had improved and was a much better boss.

Common Sense Counsel: the great message from Project Oxygen is that better bosses can be built not bought. Combined with the lessons from Project Aristotle in my Column last week on Building Great Teams, the decision is yours. Start investing in both today and reaping the rewards! 

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 and blog at

Wednesday, May 24, 2017

Tommy Eden's Funeral Talk for his father on 5.24.2017

An old Irish Headstone reads “Death leaves a heartache no one can heal; love leave a memory no one can steal.” 

Tom Eden Jr Five Rules for Life -  in your program you will see a space. 

1) Rule 1 - Don't Live a Limited Life.
dad was intent on poking his finger into the stomach of life and seeing what popped out.
first male twirler for auburn university cheerleaders leading the AU band in the Truman Inaugural parade on Jan 29, 1949 in Washington DC and by the end of that year women played in the AU band for the first time in history – and I am sure Dad played a hand in that as he truly loved women. 
who but Lt Tom Eden would dare to convince a tugboat captain to pull alongside a United States Navy transport and climb up a cargo net as 800 Marines glared down at him because he missed his ship the Bohaire headed for Korea, all to give his new bride a kiss goodbye on the dock in Norfolk, VA.
30 years ago, Dad called my cousin Roger Reardon in Virginia as he and mom were going to visit my uncle and aunt Bill and Shirley Pleasants in Salem, VA to watch the NCAA finals. He asked Roger what beer he liked; Roger said PBR, Dad shows up at the house with a six-pack and he and Roger drank it during the game. Roger told me later that was probably the only beer ever drunk in Aunt Shirley’s house. 
2) Rule 2- have passion believing you can make the world a better place.
23 scouts made eagle in five short years while dad was scoutmaster of Troop 30 because he passionately believed they could and had this magical power of persuasion that caused them to believe as well. 
and as Murphy Murphy will tell you he pushed that passion into the boys he believed in - and 100s of other people sitting here today can tell you the same story. Each of you achieved the un-achievable because of dad's passionate belief in you.  And next, he was hands on as Trey Johnston framed it, coaching them to achieve their dream.
Forestdale Nativity - is still going strong after 50 years of telling the story of the birth of Christ Jesus on 4X8 sheets from the perspective of the shepherds and wise men, along with building a full nativity at the top of the neighborhood, because Tom Eden and Lee Cannon passionately believed that their Christian faith should be shared and not hidden.
3) Rule 3 - build a great team.
before Steve Jobs of Apple and Eric Schmitt at Google, Dad figured out the mystery of building great winning teams and scout troops and it was around the "mystery of the campfire"
around the campfire every boy had an equal voice from cry-baby Dr. Woodley Jones to Super Scout Sherman Phillips who leap tall buildings in our eyes.
the campfire was not over until every boy had a chance to speak.
around the campfire each boy was encouraged to go after their dreams.
around the campfire, there was an emotional support system that lifted all up towards the goal of Eagle Scout and beyond; and 
dad was a great active listener who coached everyone individually after he understood the dream that God had placed in their heart.
4) Rule 4 - don't do it for the money.
Tom Trotter told me the story of how he needed 2 dollars more to get back to Columbus after going on a Troop 30 outing – Dad reached in his pocket and gave Tom his most special 2-dollar silver certificate bill so Tom could get on the bus that night. 
I can't tell you the number of people that dad has helped during their hard times, or merely saw an opportunity that he wanted to encourage someone to venture into and gave freely to them. 
no telling how many Scout uniforms, sleeping bags, backpacking trips, groceries he paid for out of his own pocket just to make sure everyone had an opportunity to succeed and reach their full potential and dream.
Building them up to discover the calling that God had placed in their hearts was the treasure he stored up for himself in heaven.
5) Rule 5 - be an encourager of others.
raise your hand if Dad Encouraged you?
around the campfire 2000 years ago was an act of encouragement. 
the most discouraged man in history had days earlier denied Christ three times before the cock crowed. That man now sat at dawn face-to-face on a pebbled shore on the Sea of Galilee, with smoke curling from a campfire, eating a fish sandwich, waves lapping on the shore, and looking into the same eyes he had stared into across the courtyard of the high priest.
with 7 simple words, and a divine fish sandwich, Christ encouraged Peter. 
Peter - do you love me?  Peter answered - Lord you know I'm fond of you – Jesus said - feed my sheep.
Christ then asked Peter the same question and two more times Peter gives his same non-committal answer. Christ said - feed my sheep.
Peter “come to terms with your calling in me” was Christ’s encouragement across the flames of that campfire as he breathed his faith into Peter’s spirit. It was the “mystery of the campfire” that set the scene for Christ’s great miracle since his resurrection. 
days later Peter preached to 3000 in Jerusalem who were saved in the name of Christ Jesus because Peter accepted Christ’s vision for himself when he had no vision of his own – but only back to fishing. 
and the world has never been the same; 
and the ripple in the lake of Dad’ encouragement in love can still be seen in you here today and death cannot steal that.

One of the troop 30 scouts Dad greatly encouraged was my friend and classmate Bill Goodwin. I am going to ask Bill to come up and speak on behalf of all scouts that Dad encouraged to give you the rest of the story.  May God bless you all and may God grant to each of you His divine favor for being Dad’s friend and the friend of our family. 

Thursday, May 18, 2017

Building Great Teams – Not the Whos but the Hows

By Thomas Eden

Project Aristotle, started by Google in 2012, sought to answer how to build that perfect work team and understand maximizing team effectiveness. Results were released externally in 2016.

Project Aristotle findings:
1. Data was gathered and assessed from 180 Google teams.

2. Two-year long effort started in 2012.

3. No patterns detected to correlate why some succeeded and others didn’t.

4. Teams with similar makeup or even some of the same members demonstrated varying results.

5. Metrics like personal friendships, strong management, team structure, personal interests, gender, or longevity provided no clear insight.

6. Group norms were found to be key to teams’ success. Group norms are unwritten and often unspoken rules guiding the behavior of the teams.

7. Final determination was that a group of superior individuals was less important than the collective ability of the team.

Five key norms of highly effective teams as determined in the Project Aristotle report were:

1. Teams need to believe their work is important (Vision Statement);

2. Teams need to feel that their work is personally meaningful (how they fit into the Company Vision);

3. Teams need clear goals and defined roles (Team Mission Statement and job descriptions);

4. Team members need to know they can depend on one another (Statement of Values); but

5. Most importantly teams need psychological safety (combination of social sensitivity and equal voice)

Psychological Safety - the mystery solved. Google found teams were highly successful because there was a feeling of psychological safety:

· because teammates felt they could trust each other;

· that honest discussion could occur without fear of retribution;

· that members would have roughly equal voices; and

· teammates showed that they were sensitive to one another's emotions and needs.

Establishing psychological safety begins with effective team leader asking such questions:
· Are you encouraging equality in speaking, or rewarding the loudest people?

· Are you modeling and encouraging active listening by summarizing what people say after they have said it?

· Are you demonstrating and encouraging a sensitivity to what people think and feel, or are you letting decisive leadership be an excuse for not paying as close attention as you should?

· Are you admitting when you don't know the answer and encouraging transparency?

· Are you ending a meeting before all team members have spoken at least once?

· Are you encouraging people who are upset to express their frustrations and encourage other teammates to respond in non-judgmental ways?

· Are you calling out inter-group conflicts and resolving them through open discussion, thereby encouraging a work team built upon mutual respect?

Common Sense Counsel: So if you want a workplace team that produces extraordinary transformative results, you need look no further that what Google learned from Project Aristotle. It is the Hows your teams operate and not the Whos on them that makes the critical transformational difference. Next week - Google’s People Analytics’ Project Oxygen which examined why some team leaders fostered smarter, faster, and better teams than others. Great Teams start with Great Leaders!

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 and blog at

Thursday, May 11, 2017

Alabama Work Comp Act Ruled Unconstitutional

By Thomas Eden

Nora Clower injured her lower back on the job while employer by Caremark CVS in Jefferson County Alabama and sought workers' compensation benefits. Clower claimed she earned an average of about $335 a week for CVS, being employed there for less than a year before her injury. Under the current law, workers hurt while on the job are eligible for up to $220 a week in compensation for a disability once their condition has stabilized. Lawyers for Ms. Clower argued that that cap dated to 1987, and $220 per week was above minimum wage level and the poverty level at that time. However, living costs and wages far exceed that number now and a similar cap would total just under $500 today.

This week in a groundbreaking ruling in the case of Nora Clower vs. CVS Caremark, in Jefferson County Circuit Court, Circuit Judge Pat Ballard found two provisions of Alabama’s Workers' Compensation Act unconstitutional. The $220 weekly cap and the 15% attorney fee.

In his order, Judge Ballard held that grouping of compensated injured workers into two classes which basically received the same benefit "makes no rational sense…There is little credibility in telling two injured workers, both of whom are 99 percent disabled due to work injuries, that they both get $220 per week... when one earns $8.50 per hour for a 40-hour work week, and the other earns an annual salary of $125,000…In fact, $220 a week for a family of four is more than half below the poverty line,” Ballard held.

On the question of a 15 percent cap on attorney's fees, Ballard held that it "fails to afford due process of the law." He also ruled that a cap on fees is a function of the judiciary branch and not the legislative.

Ballard stated he understood the far-reaching implications of his ruling when he observed in his order, "There will be impact on medical providers, who presumably draw great income from the provision of medical care billed to workers' compensation insurers, employers, and self-insurance funds… There will be impact to insurers, given that the sales of, and premiums collected for, workers' compensation insurance in Alabama will halt in the absence of workers' compensation laws... and workers will have to turn to other sources – or none at all – for the provision of medical care or subsistence compensation upon suffering the misfortune of workplace accidents."

Because of a non-severability statute in the Alabama Workers' Compensation Act, if any part of the law is deemed unconstitutional, the entire act is unconstitutional. Consequently, the entire Alabama Workers' Compensation Act is nullified by Judge Ballard’s ruling.  Ballard is staying his May 8 order 120 days so the Alabama Legislature can correct it, due to what he called the "magnitude" of the ruling." These crises are the direct result of a problem created and allowed to persist by the Legislature," he stated, before issuing a stay.

Common Sense Counsel: Employers are advised to continue to use the procedures they currently have in place for handling on-the-job injuries and workers’ compensation claims. I am confident Auburn Alum Governor Kay Ivey will handle this crisis with common sense.

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 and blog at with link to decision.

Thursday, May 4, 2017

Comp Time May Become Law

By Thomas Eden

The Working Families Flexibility Act, which would amend the Fair Labor Standards Act (FLSA) to allow private-sector companies to offer employees who are eligible for overtime the choice between being paid in cash for hours they work above 40 or accruing an hour and a half of paid time off, passed the United States House on Tuesday. Bill Sponsor Representative, Martha Roby of Alabama, claims it gives employers and employees flexibility in scheduling, which could increase employee satisfaction and retention. Currently, it is illegal under the FLSA for private employers to pay in comp time.

What Employers Need to Know
1)                  New OT Possibilities: the proposed legislation would enable nonunionized private employers to offer workers the option of accruing up to 160 hours of "comp time" for hours worked beyond 40 in a week. Employees would have to voluntarily agree, in writing, to such an arrangement and would be able to change their mind at any point, cash out their unused time off and return to a cash compensation structure for overtime. Employers can likewise stop offering comp time as an option at any point as long as they give workers 30 days’ notice of the change in policy. If employees’ accrued time goes unused at the end of any given year, companies have about 30 days to reimburse the workers in cash for that time.

2)                  To Qualify: employees would have had to work at least 1,000 hours — the equivalent of 25 continuous 40¬hour workweeks — in a 12-month period before they agree to any comp time arrangement. For employees that are represented by a union, any comp time policy an employer seeks to enact would be subject to collective bargaining

3)                  Employers can not directly or indirectly intimidate, threaten or coerce: employees must be free to choose the comp time option and can not be forced to use the time they have accrued. Employers also must permit workers to use their paid time off “within a reasonable period” after an employee makes a request as long as the use of that comp time “does not unduly disrupt the operations of the employer.”

4)                  Interactive Process: The law will create an interactive process between workers and employers that may ultimately leave workers more satisfied with their jobs. Creating clear policies for employees’ requests for paid time off and training management how to comply with laws before legal issues arise is highly advised, if the bill passes the Senate.

Common Sense Counsel: I am pleased to report that our local East Alabama Society of Human Resources Managers Chapter (EASHRM) has supported and championed Congressman Roby’s bill for 2 years during our one on one visits with the Alabama Congressional Delegation. If it becomes law, it will be a win-win for private employees and employers alike giving them flexibly, choices and higher satisfaction in the workplace. Stay tuned to see if the United States Senate gets the memo. 

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 and blog at

Friday, April 28, 2017

Monday May-Day: 5 Tips to Keep Your Workplace Running Cool During Political Protest

By Thomas Eden

On Monday May 1 thousands of workers nationwide will take part in anti­-Trump or pro-­immigration protests. This will present a challenge for employers to keep their cool with employees who desire to express themselves, and their business running.

Monday is the 131st anniversary of the Haymarket riots, which eventually lead to the recognition of May Day. The Haymarket affair (also known as the Haymarket massacre or Haymarket riot) took place at a labor demonstration on Tuesday May 4, 1886, at Haymarket Square in Chicago. 

What began as a peaceful rally in support of workers striking for an eight-hour day exploded into a riot when a dynamite bomb was thrown at police as they dispersed the rally. The bomb, and then gunfire, resulted in the deaths of seven Chicago police officers, four civilians, and later four bomb makers were hung. No single event has more influenced the history of labor law in the United States.  In 1935 Congress enacted the National Labor Relations Act 1935 to protect the rights of employees and employers, to encourage collective bargaining, to curtail certain private sector labor and management practices, and generally create a more peaceful management-labor process.

Common Sense Counsel

5 Tips to keep your workplace respectfully calm during times of political strife:

1)         Be Consistent and Neutral on Policy Application. An employee walkout or absence for a protest is much like an employee absence for a vacation or a walkout over a disagreement. If you would let your workers off for any other reason, let them off to protest. Political rallies are often planned around midday so workers can use their lunch break to attend. If you normally let a worker run a quick errand, do so for a political rally.

2)         Apply your policy as if politics weren’t involved.  If you allow workers to take off with a minimum notice of 24 hours - let them off to protest. But if that same worker skips Monday without notice, take consistent disciplinary action short of discharge.  

3)         Political Speech may be protected. While political speech by private workers is not federally protected, there is a thin line with protest for immigration, women’s right, LGBT, religion, etc and you don’t want to guess wrong. Public­sector employees have a First Amendment right to speak their minds.

4)         The NLRA bars acting against employees who engage in protected concerted activity. Expressions that have a connection to concerns in the workplace or working conditions, is fair game, even for nonunion employees.  Potential violations of those protections under the NLRA may earn you an unfair labor practice charge.

5)         Treat Political Speech like any other and Pass the May-Day Test. When political speech becomes hate speech directed to a protected employee category, an employer must act or risk facing an EEOC Charge or suit for permitting harassment or a hostile work environment. Employees at work could have a conversation about Auburn/Alabama football that touches on race, arrest records, aged fans tree killing, etc. and it offends a group of employees. The wise employer wouldn’t hesitate to act in that situation. A political conversation is no different -regardless of your grit-iron affiliation.

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 and blog at