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Thursday, October 12, 2017

Trump Decides to Lower Small Business Health Care Premiums without Congress


The Trump and Republican promise to “Repeal and Replace” the ACA has run into more than one bump in the road. On Thursday President Trump let the nation know that he is aware of the other arrows in his health care quiver. His solution could be accomplished by allowing small business employers to band together thousands of employee lives forming “association health plans” via their trade associations or chambers of commerce, and crossing state lines.

Under the Employee Retirement Income Security Act of 1974 (ERISA) there already are provisions in the law which could allow small businesses to band together to provide healthcare benefits, and even cross state lines. In East Alabama there are currently thousands of employees covered under their employer’s self-insured ERISA plans, administered by Blue Cross/Blue Shield of Alabama, with various forms of stop-loss reinsurance.  Further legislation is not necessary, but regulatory change would speed adoption and expansion of this alternative for East Alabama Small Employers.

The mechanism to accomplish this is the self-insured Multiple Employer Welfare Arrangement (MEWA). MEWAs can be fully insured as well. MEWAs were created under the amendments to the ERISA in 1983 which currently allows employers to form self-insured health plans through their employer business associations, which are re-insured by insurance companies using a stop-loss plan, thereby providing adequate reserves to satisfy state regulators.

There are currently more than 175 self-insured MEWAs across the United States with tens of thousands of small businesses participating. In 2016 there were 9 MEWAs in Alabama listed on the Department of Labor (DOL) site. The problem is that the current law provides for dual regulation of MEWAs, by both the federal DOL and each individual state Department of Insurance, such as Alabama.

The DOL has consistent standards for MEWAs, but each state can have its own unique requirements. Alabama currently has no specific MEWA regulations, but looks at the underlying stop-loss insurance carrier as the state regulated entity. This limits the ability of MEWAs to cross state lines, as they would have to navigate each state’s insurance department requirements.

The 1983 amendments to ERISA provided a mechanism to resolve the problem by giving the Secretary of Labor the ability to adopt a regulation whereby the dual regulatory system can be circumvented. In other words, the DOL can adopt a regulation permitting MEWAs to cross state lines to offer more health insurance options for small businesses. The section of ERISA that provides for this is 29 U.S.C 1144 (b)(6)(B). Thus, legislation will not be required and Secretary of Labor Acosta, who was first to talk Thursday at the White House, already has the authority to do this.

In states, such as Alabama, where there are currently only one or two insurance options, there could be dozens of MEWAs available for small businesses to join, where local providers and employers joined together to solve their own local health care challenges. This could result in numerous lower-cost options for healthcare for small and large employers in East Alabama.


Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork

Standing Firm: Marijuana Workplace Solutions in Light of CT decision



Currently, 28 states and Washington D.C. have legalized marijuana for medical purposes and 8 states (Nevada, Colorado, California, Maine, Massachusetts, Oregon, and Washington) and Washington D.C. have legalized marijuana for recreational use. However, since marijuana remains a Schedule 1 controlled substance under the Federal Controlled Substances Act, possession of marijuana is still illegal under federal law. However, recent decisions will require employers to take a fresh look at their marijuana prohibition language and in those states with medical marijuana card holder protection laws, to engage in an interactive process before taking adverse employment action. Of course, an ounce of prevention (see 7 steps below) is much less costly than the pound of cure which a plaintiff’s attorney will seek to heap on an employer’s head later.

Courts have begun to address whether an employee’s use of medical marijuana can be a reasonable accommodation under the Americans with Disabilities Act in states which have specific discrimination protection laws for medical marijuana cardholders. Most will recall that in  2015, the Colorado Supreme Court held that an employer did not commit disability discrimination when it terminated an employee for violating its drug policy (testing positive for marijuana) despite the employee’s doctor’s prescription for medical marijuana. The Court in Coats v Dish Network reasoned that because marijuana was still illegal under federal law, the employer did not discriminate based on disability by enforcing its drug policy. Similarly, the Washington Supreme Court in Roe v. Teletech held that an employer’s revocation of a job offer based on the applicant’s positive result for marijuana on a drug test was not wrongful despite the Washington State Medical Use of Marijuana Act. The Supreme Court of California in Ross v. Ragwire has likewise held that the California Fair Employment and Housing Act does not require an employer to accommodate employees who used medical marijuana by ignoring positive drug test results for the drug that violate employer drug policies. None of these states had medical marijuana card holder protection laws

However, in July 2017, the Massachusetts Supreme Court held that an employer may have to ignore an employee’s drug test failure due to the use of marijuana to treat a qualified disability because it may be a reasonable accommodation under the state’s disability discrimination law and medical marijuana card holder protection law. In Barbuto v. Advantage Sales and Marketing LLC, the employee had Crohn’s disease and a physician provided her with written certification that allowed her to use marijuana for medicinal purposes. The employee did not use marijuana before or at work, but nonetheless tested positive for marijuana on the employer’s mandatory drug test. The Court held that employers in the state had a duty to engage in an interactive process to determine whether there are equally effective medical alternatives that would not violate a drug policy. If no alternative exists, the employer must demonstrate that allowing the employee’s use of medical marijuana (or the positive drug screen for the drug) would cause it an undue hardship, such as transportation employees subject to the DOT, federal contractors and recipients of federal grants, or other employers where allowing positive drug tests for marijuana would be a violation of the employer’s contractual or statutory obligations which would jeopardize the company’s ability to perform its business.

On the heels of that decision, Katelin Noffsinger was offered for a position as Director of Recreational Therapy at Bride Brook, a nursing facility in Niantic, Connecticut where she was required to take a routine pre-employment drug test. She gave notice that she was a Conn. Medical Marijuana Card Holder diagnosed with PTS and took Marinol prescription marijuana. Bride Brook rescinded her job offer because she tested positive for marijuana. In August, 2017, a Connecticut Federal District Judge, on Motion to Dismiss her lawsuit, ruled against the employer and held: 1) federal law does not preempt the Connecticut medical marijuana statute, even if they test positive on an employment related drug test; and 2) the CT MM Act provides a private right of action for individuals claiming to be discriminated against as a result of their qualifying patient status; and 3) employers regulated by federal laws are not exempt from the state statute’s discrimination prohibitions. This Federal Court decision has potentially sweeping implications for employers who conduct workplace drug testing in states with medical marijuana card holder protection laws.

So how does an employer Standing Firm with regards to marijuana use? Following these 7 steps is your ounce of litigation prevention:
1.      Know the safety sensitive and other work-related risk associated with marijuana use;
2.      Become knowledgeable with the marijuana laws and applicable cases in the states where employees report for duty;
3.      Upgrade your job descriptions to include critical essential function safety language directly applicable to marijuana use;
4.      Make it all about safety in supervisory training and employee awareness;
5.      Update your drug free workplace policy language when dealing with marijuana; 
6.      Understand the interactive process and workplace drug testing employer obligations in those states with medical marijuana card holder protection laws; and
7.      Put all the puzzle pieces into place to form your compliant legal strategy to effectively stand firm when dealing with marijuana in your workplace.


Tommy Eden is a Partner with the Management Labor Law Firm of Constagny, Brooks, Smith and Prophete, LLP and leads the Constangy Workplace Drug & Alcohol Testing Group where he drafts customized DFWP Compliant Policies, and signoff forms in all 50 states and all DOT Modes with forms toolkits. Tommy has a blog site at www.alabamaatwork.com and can be contacted at 334.246.2901 or teden@constagny.com

Thursday, October 5, 2017

Beware of the Light Duty ADA Trap


In June 2001, Paul Boyle was working as a Heavy Equipment Operator for the City of Pell City, Alabama, when he suffered an on-the-job injury that caused him to develop spinal stenosis, chronic nerve pain, and other related conditions.  After the injury, he could no longer perform the duties of a Heavy Equipment Operator. The Street Department Superintendent, initially accommodated Boyle by letting him do office work.

In 2005, his supervisor began allowing Boyle to perform the duties of the Street Department Foreman, and this was memorialized as a lateral move in a written agreement to not exceed 2 years. Boyle performed the duties of a Foreman from 2005 until June 2012. In 2012 rumors were that the new superintendent wanted to fire Boyle. 

Believing the rumors to be true, Boyle filed his first application for disability retirement with the Retirement Systems of Alabama (“RSA”) and attached to his application a “Report of Disability,” in which a physician confirmed that, in his professional opinion, Boyle was “totally incapacitated for further performance of his . . . duty.” The RSA denied Boyle’s application.

The new Superintendent did in fact remove Boyle from the Foreman position and moved him to work inventory. Boyle told the Superintendent that the physical activities involved in conducting inventory made the job hard for him to do, but told him to continue working. He also assigned Boyle to operate heavy equipment despite his back complaints. Boyle asked to be returned to the Foreman position, which was refused.

Boyle filed a second application for disability retirement with the RSA in August 2012, which the RSA approved and he retired on October 1, 2012. He also applied for disability benefits with the Social Security Administration and was ultimately approved.

 On August 18, 2014, Boyle filed a Federal Court complaint against the City, which he amended three times to assert violations of the Rehabilitation Act and FLSA, as well as state-law claims for quantum merit, unjust enrichment, and breach of contract. The District Court Judge dismissed all claims and held that Boyle could not establish that the City failed to provide him with a reasonable accommodation, given that he did not identify any reasonable accommodation that would have allowed him to perform the essential functions of the Heavy Equipment Operator position.

Recently the 11th Circuit Court of Appeals affirmed the dismissal and held the fact that the City accommodated Boyle for years by allowing him to perform Foreman duties does not indicate that it violated the ADA/Rehabilitation Act by removing this accommodation. “While we can all applaud and appreciate the kindness toward Boyle, the law simply does not require an employer to demote or discharge an employee to accommodate another employee who is disabled.”

Common Sense Counsel: Always remember that the purpose of light duty is to move back to full duty, and not to create a new reduced duty position that may be viewed as an ADA accommodation. Make sure you have a memo signed by the employee with that acknowledgment, and put it on your calendar, so you do not have to explain your actions to a plaintiff attorney with an attitude.


Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Friday, September 29, 2017

Dreadlocks Entangle Publix With EEOC

 Guy Usher, a twenty-eight-year-old African-American male and a resident of Nashville, Tennessee practices Rastafarianism as his sincerely held religious belief. Those religious practices as a Rastafarian include prayer, non- consumption of alcohol or pork, and maintaining his hair in dreadlocks. One of the "distinguishing marks of the movement" is the formation of hair into dreadlocks (as detailed in the Wikipedia article on Rastafari. Reggae musician Bob Marley did much to raise international awareness of the Rastafari movement).

On January 8, 2017, while shopping at his local Publix Store #1211, Usher was approached by a recruiter and encouraged to apply for a job at the Store, which he did. On the same day, Publix’s Assistant Store Manager interviewed Usher in the Store considering him for two open positions, one as a Part-time Cashier and one as a Part-time Produce Clerk. She also had Usher speak to the Store’s Customer Service Manager. At the end of those interviews, she told Usher he would have to cut his hair to work at Publix based on Publix Appearance Standards which prevent men from wearing their hair longer than the collar of their shirt.

Usher informed the manager that he could not cut his hair because it was against his religion and asked if he could wear his hair inside a hat to which the manager said she would have to check and get back to him. On January 10, the manager called Usher and offered him employment as either a Cashier or Produce Clerk, but she told Usher that Publix could not accommodate his religious beliefs by allowing an exception to its Appearance Standards. On this call, Usher refused Publix’s offer of employment.

That same day, believing that he had been discriminated against, Usher called back and accepted the part-time Produce Clerk position, and scheduled a drug screen for January 11. On this phone call, Usher again referenced his religion and equal-employment-opportunity laws and asked if Publix will still require him to cut his hair; to which the manager replied “Yes.”

Several days after January 11, Usher called the Store and told the manager that he felt uncomfortable cutting his hair for religious reasons.  She asked Usher if he wanted Publix to withdraw its offer of employment, and Usher replied in the affirmative. After processing his Title VII Religious Discrimination Charge, the EEOC filed suit in Tennessee Federal Court on September 26, 2017 alleging that that “the effect of the practices complained of by Usher has been to deprive him of equal employment opportunities and otherwise adversely affect his status as an employee because of his religion.”

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, wearing religious clothing or even hair styles. All an employee needs is a strongly held religious belief to make such a request. If you can find a reference to the applicant or employee’s claimed religion on Wikipedia, tread lightly and seek to be accommodating. And for Heaven’s sake have a legally defensible religious accommodation policy in your employee handbook. 
  
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 teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com with link to Complaint



Friday, September 22, 2017

Revised Form I-9 Must be Used for New Hires



As part of President Trump’s very first Executive Order (E.O.) 13767, “Border Security and Immigration Enforcement Improvements,” the United States Citizenship and Immigration Services (USCIS) released a revised version of Form I-9, Employment Eligibility Verification. Instructions for how to download Form I-9 are available on the USCIS Form I-9 page. On Sept. 18, employers must use the revised form with a revision date of 07/17/17 N. Employers must continue following existing storage and retention rules for any previously completed Form I-9.

Revisions to the Form I-9 instructions:
USCIS made the following substantial changes:
1) the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, Immigrant and Employee Rights Section.
2) removed “the end of” from the phrase “the first day of employment.”
3) Revisions related to the List of Acceptable Documents on Form I-9: USCIS added the Consular Report of Birth Abroad (Form FS-240) to List C. Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Sections 2 and 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9.
4) USCIS combined all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) into selection C #2 in List C; and renumbered all List C documents except the Social Security card. For example, the employment authorization document issued by the Department of Homeland Security on List C changed from List C #8 to List C #7.
5) USCIS included these changes in the revised Handbook for Employers: Guidance for Completing Form I-9 (M-274), which is also easier for users to navigate.

Stiff Fines for not being in Immigration compliance as of 02/03/2017:
Unlawful employment of aliens (if you cannot produce a Form I-9 for the person this fine applies), first order (per unauthorized alien) $548 to $4,384
Unlawful employment of aliens, second order (per such alien) $4,384 to $10,957
Unlawful employment of aliens, subsequent order (per such alien) $6575 to $21,916
Paperwork violation (per relevant individual) $220 to $2,191
Violation relating to employer's failure to notify of final non-confirmation of employee's employment eligibility (per relevant individual you continue to employee) $763 to $1,527
Unfair immigration-related employment practices, document abuse (per individual discriminated against – simple as accepting additional not required ID) $181 to $1,811

Common Sense Counsel:
1) Schedule I-9 Supervisor Training today on the new Form I-9;
2) Put an E-Verify/I-9 policy in your employee handbook;
3) Adopt a Form 1-9 retention policy that meets the new regulations:
4) Make sure all your hiring managers are using the latest version of Form 1-9;
5) Have a Form I-9 Audit ASAP by someone who will provide you corrective action guidance, letters, retention policy and training on what you did wrong; and
6) Count the above costs of not complying – typical error rate for paperwork errors alone is 50% times the number for Form I-9 you have on file = big penalty.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, 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 with links to resources.









Friday, September 8, 2017

Sweet Revenge for Breastfeeding Tuscaloosa Police Officer


Tuscaloosa Police Officer Stephanie Hick was hired in 2009 by the Tuscaloosa Police Department as a patrol officer on the West Alabama Narcotics Squad and worked temporarily as an undercover agent. Hicks learned that she was pregnant on January 6, 2012, and informed her Captain and asked what the policies were for pregnant employees. She was informed that no policies were in place for pregnant employees and the Chief stated that it was at the discretion of her supervisor, as reported in a Federal Judge’s Order.

On August 8, 2012, before going off on leave, Hicks received her annual evaluation and her overall performance was evaluated as "exceeds expectations." Hicks then took 12 weeks of FMLA beginning mid-August 2012, for the birth of her child and on November 26, 2012 returned to duty.

Within an hour of beginning her first day back at work, Hicks was called into the Captain’s office to speak with him and a Sergeant, where she was told that she was being written up in the form of an "informal counseling" for allowing her vehicle to go 1200 miles over the limit for recommended oil changes without changing the oil and for continuing to obtain multiple warrants for individual defendants.

Hicks also discussed with the Captain and Sergeant in this same meeting that she was breastfeeding her new child. The Captain informed Hicks that the police station did not have a pumping area similar to the lactation rooms at City Hall. Hicks asked if she could use the records room to express breast milk, but the Captain indicated that Hicks should use the locker room.

After the meeting, Hicks overheard the Captain and Sergeant discussing wanting to "get rid of that little bitch" and that they would find "any way" they could to do so, along with other more colorful references to Hicks.

Reluctantly, Hicks expressed breast milk in the police locker room at work roughly twice a day, and every time Hicks expressed breast milk at work, someone entered the locker room.

Hicks was reassigned and demoted to a less desirable unit in December 2012, after only six days back on the job. She was also required to be on patrol and to wear a bullet-proof vest. On her doctor's orders, Hicks requested a desk assignment because wearing the vest would “impede milk production or cause infection.” Her request was denied and she was given the choice of wearing a larger vest or working without one, the Judge wrote.

Hicks resigned in January 2013, and filed suit against the City under Title VII of the 1964 Civil Rights Act, the Family and Medical Leave Act and state law. A Federal Magistrate Judge in the Northern District of Alabama ruled her allegations sufficiently stated a triable claim to submit to a jury on pregnancy bias, leave interference, and constructive discharge claims. The “fact that the plaintiff could ‘work-around' the fact that she was not provided a private place to pump [breast milk] at her place of work does not absolve the defendant of its failure to provide her with such a location, as required”, the Judge noted.

A federal court jury, on February 19, 2016, found in favor of Hicks and awarded her $374,000 in damages, finding that the City violated the Pregnancy Discrimination Act by making working conditions intolerable and engaged in FMLA Retaliation, which compelled her to resign. There is now a room designated for women who need to use a breast pump at TPD headquarters and two at City Hall. The Federal Judge reduced the award to $161,319.92 plus costs and attorneys’ fees, and the 11th Court of Appeals affirmed the award on Thursday.

Common Sense Counsel: It's unlawful to take adverse employment actions against an employee because she insists on her right to take a break and lactate or for expressing breast milk at work. The Judge’s 45 page opinion is a trail of facts on how to botch a female’s return from pregnancy leave. And with most adverse employment decisions, bad timing is the mother’s milk upon which substantial verdicts rest.

Here is a link to the case: 


Tommy Eden is a partner working out of the Constangy, Brooks & Smith, 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

Friday, September 1, 2017

Just Too Cute To Work Here




Charles Nicolai is married to Stephanie Adams Nicolai and the two are co-owners of Wall Street Chiropractic and Wellness. Charles is the head chiropractor and oversees the medical operations, while Stephanie is the chief operating officer. In April of 2012, Charles hired Dilek Edwards, as a yoga and massage therapist, and he was her direct supervisor.

The NY Lawsuit alleged that the relationship between Charles and Dilek was "purely professional" and that Charles regularly praised her work performance throughout her period of employment. In June 2013, Charles informed Dilek that his wife might become jealous of her, because she was “too cute.'"

Approximately four months later, on October 29, 2013, at 1:31 a.m., Stephanie sent Dilek a text message stating, "You are NOT welcome any longer at Wall Street Chiropractic, DO NOT ever step foot in there again, and stay the [expletive] away from my husband and family!!!!!!! And remember I warned you." A few hours later, at 8:53 a.m., Dilek received an email from Charles stating, " You are fired and no longer welcome in our office. If you call or try to come back, we will call the police.'" On October 30, 2013, Stephanie filed a complaint with the New York City Police Department (NYPD) alleging that Stephanie had received "threatening" phone calls from Dilek that so frightened her as to cause her to change the locks at her home and business.

Dilek alleged in her NY wrongful discharge lawsuit that her relationship with Charles was strictly professional and that she "has no idea what sparked . . . suspicions" to the contrary.” Dilek also claimed alleged that Stephanie's complaint to the NYPD was false and was made for the purpose of harming her.

Based on the assumption that everything the therapist claimed in her lawsuit was true, the Appellate Division of New York found that she had stated valid legal claims for gender discrimination under the New York State Human Rights Law and the New York City Human Rights Law. According to the Court, under both laws, “adverse employment actions motivated by sexual attraction are gender-based and, therefore, constitute unlawful gender discrimination.” Because the therapist alleged that the chiropractor “was motivated to discharge her by his desire to appease his wife’s unjustified jealousy, and that [the wife] was motivated to discharge [her] by that same jealousy,” the claims could go forward.

The outcome would have been different, the Court said, if the wife had fired the therapist for having an affair with the chiropractor. “In such cases,” the Court said, “it was the employee’s behavior — not merely the employer’s attraction to the employee or the perception of such an attraction by the employer’s spouse — that prompted the termination.” The Court also found that the therapist had stated a valid legal claim for defamation, based on the wife’s allegedly false report to the police.

Common Sense Counsel: Making wise hiring decisions, with all critical decision makers involved, is many times the most critical decision for a small business.

 Tommy Eden is a partner working out of the Constangy, Brooks & Smith, 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

Friday, August 25, 2017

Employer Federal Marijuana Defense Up In Smoke


Katelin Noffsinger was made a verbal offer for a position as Director of Recreational Therapy at Bride Brook, a nursing facility in Niantic, Connecticut. When she was then asked to undergo a routine pre-employment drug screen, Noffsinger disclosed that she was diagnosed with PTSD and that she took prescription marijuana as a “qualifying patient” under Connecticut Palliative Use of Marijuana Act (PUMA). Noffsinger provided Bride Brook a copy of her patient registration certificate, explaining that she only took Marinol in the evenings, before bed, and thus would not be impaired during the workday. The day before Noffsinger was scheduled to begin work, Bride Brook rescinded her job offer because she tested positive for marijuana.

Noffsinger filed a complaint in Connecticut state court, alleging a violation of PUMA’s anti-discrimination provision which states, “no employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient.” After removing the case to federal court on the basis of diversity jurisdiction, Bride Brook moved to dismiss Noffsinger’s complaint. The court denied the motion finding no federal preemption by the federal Controlled Substances Act (CSA), Americans with Disabilities Act (ADA) or the Food, Drug and Cosmetic Act (FDCA). 

Bride Brook had argued that an actual conflict exists between PUMA, which affirmatively authorizes the medical use, possession, sale and distribution of marijuana, and the CSA, which classifies marijuana as a Schedule I substance with no known medicinal purpose and thus makes it a federal crime to use, possess, or distribute marijuana. The court rejected this argument as “overbroad,” holding that, because Noffsinger’s claim is limited to PUMA’s anti-discrimination provision Bride Brook must prove a conflict between that specific provision and the CSA, not between the CSA and PUMA more generally. The court held that no such conflict exists because the CSA does not prohibit employers from hiring or employing individuals who use illegal drugs. It distinguished this case from multiple cases in other states that held CSA preempted the state’s medical marijuana law, as none of those state statutes had specific anti-discrimination provisions. Even more disturbing the court held that there is no broad exemption for federal contractors or other federally regulated employers.

Common Sense Counsel: This case complicates an already complicated landscape for employers who conduct drug testing for marijuana, particularly as the decision marks the third time in four months that a court has ruled against employers in drug testing cases involving medical marijuana users. The others were Massachusetts and Rhode Island state courts.  This is the first time a federal court has considered whether the CSA preempts a state medical marijuana law’s anti-discrimination provision, and the result is a warning to employers with policies that include categorical bans on marijuana use. There are at least eight states that have similar medical marijuana employment anti-discrimination penalty prohibition laws, so fix your drug free workplace policy so it will not go up in smoke.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, 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


Monday, August 21, 2017

Pharmacist’s needle phobia loses to well drafted job description


As soon as Christopher Stevens turned 16, he got a job at Carl’s Drugs, and he remained employed continuously by Carl’s Drugs and its successors, which included Rite Aid, for the next 41 years. Stevens’ job included providing medication safely to customers, ensuring that medications were stored properly, providing appropriate information to customers regarding their prescriptions and fielding medical questions.

In March of 2011, Stevens received an e-mail from the district manager which informed all pharmacists that Rite Aid was going to require them to start giving immunization shots to customers. Doubting his ability to give shots as a result of his lifelong fear of needles, Stevens consulted Rite Aid’s employee handbook, which included a provision regarding the accommodation of employees with disabilities in compliance with the Americans with Disabilities Act (“ADA”). Stevens provided Rite Aid with a note from his treating physician who explained that Stevens’ suffers from trypanophobia2 (“needle phobia”) and informed Rite Aid that as a consequence Stevens could not give injections. Notwithstanding, Rite Aid directed him to undergo immunization training and ignored his request for an accommodation for his disability.

Stevens heard nothing further from Rite Aid until two months later, when Rite Aid’s Human Resources Department faxed Stevens a list of five questions that he wanted his doctor to answer regarding Stevens’ phobia and the doctor responded with a note indicating that if Stevens were to administer an injection, “[h]e would become diaphoretic, hypotensive and probably faint. He advised Rite Aid that Stevens could not safely administer an injection, since the likelihood that he would faint would be “unsafe for the patient and Mr. Stevens.”

On August 18, 2011, several Rite Aid managers came into the pharmacy where Stevens was working and told him that Rite Aid had concluded that the ADA did not apply to his trypanophobia, that they were not required to make any accommodation for him and, that if he did not successfully complete immunization training and start giving injections, he would lose his job. No accommodation or alternate position was offered or even discussed at that meeting. The following week, Stevens was terminated by a letter.

Stevens brought an action against Rite Aid, asserting claims for wrongful termination because of a disability, retaliation, and failure to provide a reasonable accommodation for his disability in violation of both the ADA and a similar New York State law. The jury returned a verdict in favor of Stevens and awarded back-pay damages of $485,633.00, front-pay damages of $1,227,188.00 and non-pecuniary damages of $900,000. The Second Circuit reversed and ruled in favor of Rite Aid finding that Rite Aid’s designation of a job duty as an “essential function” is essentially dispositive, absent clear and convincing evidence to the contrary by the employee. This week Stevens filed a petition for certiorari with the U.S. Supreme Court claiming the 2nd Circuit was wrong to not use a 7 part test.

Common Sense Counsel: The case is a lesson for all employers on the weight a well drafted job description has with the courts. Have them for all positions so you will not get jury phobia.


Tommy Eden is a partner working out of the Constangy, Brooks & Smith, 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

Friday, August 11, 2017

Waffle House Smothers Lawsuit



William Jones applied for a job at a Florida Waffle House in Ormond Beach in December 2014 but was rejected. In October 2015, Jones sued Waffle House and various data-reporting companies in federal district court, claiming that they violated the Fair Credit Reporting Act by failing to give him a copy of the background checks that were run on him in connection with his job application and by failing to give him an opportunity to dispute those background checks. Jones also sought class relief, seeking to represent a class of United States residents who applied for employment with Waffle House in the preceding five years who Waffle House did not hire based on a background check.

While that lawsuit was pending, Jones continued to seek employment with Waffle House elsewhere, and, in February 2016, Jones was hired at a Waffle House in Kansas City, Missouri. In connection with that employment, Jones signed an arbitration agreement that covered “all claims and controversies, past, present, or future, arising out of any aspect of or pertaining in any way to his employment.”  The agreement also included a delegation provision requiring that “the Arbitrator, and not any federal, state, or local court or agency, shall have authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement.” Jones neglected to tell his new employer in Kansas City that he was actively suing Waffle House in Orlando. When Waffle House’s legal team later learned, in March 2016, that Jones had signed an arbitration agreement, it moved to compel arbitration pursuant to the agreement.

This week the 11th Circuit Court of Appeals held that the Waffle House arbitration agreement contains a broad, valid, and enforceable delegation provision that expresses the parties’ clear and unmistakable intent to arbitrate gateway questions of arbitrability, including questions concerning the interpretation, applicability, enforceability, and formation of the agreement. “In the face of the Federal Arbitration Act’s clear preference for and presumption in favor of arbitration, we are obliged to enforce the parties’ clear intent to arbitrate these issues.” The 11th Circuit has the same track record on similar past decisions.

Common Sense Counsel: in the employment law the most feared words a plaintiff’s employment lawyer hates to hear their client say is “oh by the way I signed an arbitration agreement with my employer.” It is like yelling Zika on South Beach – all the lawyers scatter. It will be the single best employment law risk reduction strategy you may ever use.
The best programs have the following components: 1) an internal complaint process with a promise of no retaliation; 2) handbook provisions giving employee two channels to make their complaint and fair investigation process; 3) well drafted and broadly worded arbitration provision, covering class claims, that will pass court scrutiny; 4) private arbitration panel of former local judges, or AAA Arbitration, and mostly importantly; and 5) a Human Resource professional with a listening ear and risk reduction mindset.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, 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



Thursday, August 3, 2017

Battle of the feds! DOJ, EEOC lock horns on sexual orientation bias


Battle of the feds! DOJ, EEOC lock horns on sexual orientation bias

The U.S. Department of Justice and the Equal Employment Opportunity Commission are at cross purposes in the “gay skydiver” case.

Donald Zarda worked for Altitude Express as a skydiving instructor. Following one jump, a customer complained that Zarda had disclosed his homosexuality and other personal details during the jump. Zarda was fired soon thereafter. He sued Altitude Express claiming sex discrimination under Title VII, gender and sexual orientation discrimination under New York state law, and violation of state and federal wage and hour laws. Zarda is deceased but his lawsuit lives on through the two executors of his estate who have replaced him as plaintiff. At trial on his state law discrimination claim, the jury found that Zarda had not proved that his sexual orientation was a determining factor in his termination.

On appeal, Zarda claimed that Title VII protects against sexual-orientation discrimination and that part of his case should not have been dismissed. The U.S. Court of Appeals for the Second Circuit recently signaled that it might overrule its precedent holding that Title VII’s ban on sex discrimination does not include sexual orientation discrimination.

In late June, the EEOC filed a brief in support of Zarda’s estate, whose lawsuit has been unsuccessful so far. The EEOC argued that Title VII does indeed prohibit discrimination based on sexual orientation.

But then last week, the Trump/Sessions DOJ filed a brief in support of the employer, flat-out saying that the EEOC is wrong and that its authority is limited: “Although the [EEOC] enforces Title VII against private employers and it has filed an amicus brief in support of the employee here, the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.” There brews a bigger battle of a conflict of the Circuits Courts of Appeals on this very issue that will require U.S. Supreme Court intervention.

Common Sense Counsel: while the battle lines are drawn between Trump v Obama policy agendas, there is still no substitute for training your supervisors in effective and defensible termination and harassment prohibitions in all forms - to include gender identification and sexual orientation. Also, the new claim of “failing to conform to gender stereotypes” appears to be gaining traction in the 11th Circuit Court of Appeals.

Specifically, train your supervisors not to use lose words like “attitude” or “company culture” or “sexuality” or similar phrases that lack defined meaning in employment law, as the courts may assign meaning you do not like. Train all employees that it is about respect in the workplace and being able in work with others in a civil and cooperative manner are essential job functions. In fact, make respectful behavior part of your statement of values. And update your harassment prevention/professional conduct policy, investigative notebook and training updated to include all forms of disrespectful and protected status individuals.  


Tommy Eden is a partner working out of the Constangy, Brooks & Smith, 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. Robin Shea, one of Tommy’s Partners featured part of this story in a recent Constangy blog post. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Thursday, July 27, 2017

Federal Government Has New Weapons to Help Employers Keep Trade Secrets



By: Thomas Eden


Federal Government Has New Weapons to Help Employers Keep Trade Secrets

Robert O’Rourke worked for an undisclosed Woodstock, Wisconsin based manufacturer of cast-iron products since 1984 as a plant metallurgist, quality assurance manager and salesperson. He also helped his company develop international business in Jiangsu, China, which manufacturer also sold and manufactured continuous cast-iron products.

On August 12, 2015, O’Rourke advised his employer that he intended to resign, but failed to disclose that he had accepted employment as the vice president from the Jiangsu, China based cast iron employer. O’Rourke allegedly then downloaded electronic data from his employer’s secure internal computer network without authorization which included trade secrets belonging to his employer.  O’Rourke resigned from his company two days later.

On August 22, 2015, O’Rourke purchased a ticket for a flight to China. At his O'Hare International departure gate on September 21, 2015, he was in possession of his former employer’s trade secrets when federal authorities seized the stolen electronic data and stolen paper documents from O’Rourke.

O’Rourke’s Federal Criminal Case, in which the indictment was filed this week, is one of the very first brought under the The Defend Trade Secrets Act (“DTSA”), signed into law by President Obama in 2016. It applies to any misappropriation of trade secrets. With this new law Companies that are victims of trade-secret theft now have a federal alternative to bringing a civil action to enjoin violations of trade-secret theft and to seek a remedy for violations that already have occurred. DTSA actions are prosecuted by the U.S. Attorney’s Office as a Criminal Prosecution.

O’Rourke’s indictment ordered him to turn over a two-terabyte external hard drive which was in his possession as he sought to board his flight to China. The federal court indictment accused him as follows:

“Robert O’Rourke, defendant herein, with intent to convert a trade secret that as related to a product and service used in and intended for use in interstate and foreign commerce…to the economic benefit of a person other than the trade secret’s owner, and knowing and intending that the offense would injure any owner of that trade secret, knowingly did possess and attempt to possess such information, knowing the information to have been stolen and appropriated, obtained and converted without authorization,” the indictment read.

Common Sense Counsel: For companies with multi-state operations, and even for companies with single-state operations but whose trade secrets are portable across state lines (by hard copy documents or electronically), the DTSA affords a new weapon to protect trade secrets nationwide. In addition, because trade secrets litigation often involves violations of non-competition or non-solicitation agreements, such claims also may be brought in federal court in tandem with the alleged DTSA violation. Finally, all agreements with non-disclosure, confidentiality, trade secrets provisions must include DTSA language to take full advance of all its protections. While you are at it, good idea to include undated 2016 Alabama Non-Compete language, work for hire patent language, electronic access restrictions and build a comprehensive strategy to protect all your intellectual property accessible to employees. Finally, the federal government has delivered to employers a sharp new shinny weapon to help keep trade secrets – secret.

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. He can be contacted at teden@constangy.com or 334-246-2901 with blog at www.alabamaatwork.com.

Wednesday, July 19, 2017

Massachusetts Supreme Court Takes Bite out of Employer Blanket Marijuana Prohibition




Cristina Barbuto, was hired into an entry level position by Advantage Sales and Marketing in the late summer of 2014. Advantage Sales and Marketing, LLC (ASM) claims to be one of North America's leading sales and marketing agencies specializing in outsourced sales and merchandising representatives to producers of food products and consumer goods.

After hire an ASM representative left a message for Barbuto stating that she was required to take a mandatory drug test. Barbuto responded to her supervisor that she would test positive for marijuana, explaining that she suffers from Crohn's disease, a debilitating gastrointestinal condition. She went on to explain that she was a qualifying medical Marijuana Cardholder under Massachusetts law and that her physician had provided her with a written certification that allowed her to use marijuana for medicinal purposes. Barbuto assured her supervisor that she did not use marijuana daily and would not consume it before work or at work. Barbuto went on to explain that as a result of her Crohn's disease, and her irritable bowel syndrome, she has "little or no appetite," and finds it difficult to maintain a healthy weight and using marijuana two or three time a week after work had helped her gain fifteen pounds and maintain a healthy weight.

In response, the supervisor told Barbuto that her medicinal use of marijuana "should not be a problem," but that he would confirm this with others at ASM. The supervisor later telephoned Barbuto and confirmed that her lawful medical use of marijuana would not be an issue with the company.

On September 5, 2014, Barbuto was subject to a ASM’s mandatory urine drug test.  A few days latter she went to an ASM training program, where she was given a uniform and assigned a supermarket location where she would promote the products of ASM's customers. On September 12 Barbuto completed her first day of work, but that evening ASM's Human Resources representative informed Barbuto that she was terminated for testing positive for marijuana.  The HR representative told Barbuto that ASM did not care if Barbuto used marijuana to treat her medical condition because "we follow federal law, not state law."

Barbuto filed a verified charge of discrimination against ASM and the HR representative with the Massachusetts Commission Against Discrimination, and later filed suit in the Massachusetts Superior Court, alleging handicap discrimination under Massachusetts law, a private right of action under the Massachusetts Medical Marijuana Act and various other state law claims which were dismissed, except for an invasion of privacy claim. Barbuto then appealed directly to the Massachusetts Supreme Court.

On July 17 the Massachusetts Supreme Court ruled in favor of Barbuto, holding as follows: “In 2012, Massachusetts voters approved the initiative petition entitled, An Act for the humanitarian medical use of marijuana, St. 2012, c. 369 (medical marijuana act or act), whose stated purpose is "that there should be no punishment under state law for qualifying patients . . . for the medical use of marijuana."Id. at § 1. The issue on appeal is whether a qualifying patient who has been terminated from her employment because she tested positive for marijuana as a result of her lawful medical use of marijuana has a civil remedy against her employer. We conclude that the plaintiff may seek a remedy through claims of handicap discrimination in violation of G. L. c. 151B, and therefore reverse the dismissal of the plaintiff's discrimination claims. We also conclude that there is no implied statutory private cause of action under the medical marijuana act and that the plaintiff has failed to state a claim for wrongful termination in violation of public policy, and therefore affirm the dismissal of those claims.”

Three Employer Safe Harbors for Marijuana Prohibitions left open by the Massachusetts Supreme Court as presenting possible undue hardships for an employer:
  1.    “For instance, an employer might prove that the continued use of medical marijuana would impair the employee's performance of her work or pose an "unacceptably significant" safety risk to the public, the employee, or her fellow employees.”
  2.     “Alternatively, an undue hardship might be shown if the employer can prove that the use of marijuana by an employee would violate an employer's contractual or statutory obligation, and thereby jeopardize its ability to perform its business. We recognize that transportation employers are subject to regulations promulgated by the United States Department of Transportation that prohibit any safetysensitive employee subject to drug testing under the department's drug testing regulations from using marijuana.”
  3.       “In addition, we recognize that Federal government contractors and the recipients of Federal grants are obligated to comply with the Drug Free Workplace Act, 41 U.S.C. §§ 8102(a), 8103(a) (2012), which requires them to make "a good faith effort . . . to maintain a drug-free workplace," and prohibits any employee from using a controlled substance in the workplace.”


Common Sense Counsel:  Marijuana Proofing your Drug Free Workplace Policy just got more complicated. But taking these steps now will reduce the risk of a successful employee challenge:  
 Update job descriptions to include “safety sensitive position” and the “ability to work in a constant state of alertness and safe manner” as an essential job function;
 Update the drug-free workplace policy to bring it into compliance with state laws and to include a “pre-duty impairing effects” disclosure language as part of a “safety rule”.
   Treat all impairing effect medications equally to avoid a medical marijuana discrimination/not compassionate/handicap discrimination claim;
 Engage in an interactive discussion with MM Cardholders in the states with sticky medical marijuana laws, like Massachusetts;
 Make employees aware of Marijuana drug free contractual commitments, gate entry requirements and restrictions that would adversely affect your company’s right to do business; and

  Make it all about safety in your policy, written documentation, training and evaluation of your workplace concerns.  

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 state compliant drug-free workplace programs for employers in all 50 states. He can be contacted at teden@constangy.com or 334-246-2901 with blog at www.alabamaatwork.com with link to order.

Wednesday, July 12, 2017

Federal Judge Halts OSHA Rule on Post Accident Drug Testing



Federal Judge David Russell, District Court for the Western District of Oklahoma, on Tuesday July 11 helped the Occupational Safety and Health Administration (OSHA) drive a stake through the heart of OSHA’s much maligned injury and illness reporting rule while the agency considers whether to undo all or part of the regulation. This now barred rule did more to slow down, and to some extent halt, post-accident drug testing by employers across the United States for fear of an OSHA retaliation charge and finds. The case is the National Association of Home Builders of the United States et al. v.Perez et al.

Judge Russell issued a one-page order granting a request by OSHA to stay the case, which the agency filed Monday, July 10th arguing that it needed the time to determine whether to “reconsider, revise or remove portions of the rule” at issue. He ordered OSHA to submit status reports every 90 days to keep the court apprised of the agency’s progress with respect to the proposed rulemaking the agency outlined in its motion.

OSHA’s new rule, which was finalized last year and took effect on Jan. 1, after a Texas Federal District Judge refused to enjoin it in November 2016, required employers to submit electronically information about workplace injuries and illnesses for a publicly available database. Many labeled its OSHA’s attempt to shame employers into compliance, as well as foster litigation.  The rule also required employers to establish reporting procedures for injuries and illnesses and barred retaliation against workers who reported such incidents. OHSA in its comments to the new rule spotlighted suspicionless post-accident drug testing as grounds for it to issue a retaliation citation.

In January 2017, the National Association of Home Builders of the United States, and others, filed a Federal Court Complaint in Oklahoma claiming the database rule exceeds OSHA’s record keeping authority and violated the First Amendment by compelling businesses to give up too much private information.

On June 28 OSHA published a notice in the federal register that both proposed a five-month delay to the July 1 deadline for certain employers to submit the first batch of information required under the rule and questioned whether additional portions of the rule would be subject to changes. OHSA stated in its filing that allowing the parties to proceed with motions for summary judgment presented the risk that OHSA would have to brief and the court would have to consider issues that may be rendered moot by the agency’s reconsideration of the regulation.

In its motion filed on Monday, the Agency stated as follows: “OSHA has confirmed that it will propose additional rulemaking that could directly affect the scope of the rule and therefore the claims at issue in this litigation… Given OSHA’s decision to propose rulemaking that could affect the requirements of the rule, there is good cause for granting the government’s request to stay this case. Staying this litigation would conserve judicial resources because additional rulemaking could eliminate or simplify some of the issues in dispute.”

Common Sense Counsel: Employers without fear of OSHA oversight or fines can, and should, immediately reinstate post-accident drug testing. Of course, having a legally compliant program in accordance with State Laws is critical to successful Worker’s Compensation Disqualification for a positive drug testing result, discharge decisions, privacy concerns, and receiving the worker’s compensation premium discount from your insurer or fund.

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 state compliant drug-free workplace programs for employers in all 50 states. He can be contacted at teden@constangy.com or 334-246-2901 with blog at www.alabamaatwork.com with link to order. 

Friday, July 7, 2017

DOL plows ahead on appeal of injunction against Obama “Overtime Rule”


In a move that reinforces the concept that the only thing predictable about the Trump Administration is its unpredictability, the U.S. Department of Labor filed a reply brief on June 30 asking the U.S. Court of Appeals for the Fifth Circuit to reverse a lower court’s 2016 ruling that enjoined the Obama Administration “overtime rule.”

Many had thought that a Trump-led DOL would have no interest in pursuing the appeal, which was already pending when the Trump Administration took over the reins at the DOL.

The DOL is arguing that the district court’s order was premised on an erroneous legal conclusion, and is asking the Fifth Circuit to reaffirm the Department’s statutory authority to establish a salary level test. However, the DOL asks that the court not address the validity of the specific salary level set by the rule ($913 per week), saying that the DOL intends to revisit the salary threshold through new rulemaking.

Background
The Obama DOL spent the better part of a couple of years engaged in formal rulemaking proceedings to modify the “white-collar exemptions” to the minimum wage and overtime provisions of the Fair Labor Standards Act – the so-called executive, administrative and professional exemptions. Those regulatory changes, which were finalized and set to take effect on December 1, 2016, would have, among other things, more than doubled the minimum weekly salary threshold necessary to qualify for the exemptions, raising it from the current $455 per week to $913 per week, and indexing it to automatically adjust every three years thereafter. Not surprisingly, most employers were shocked at the size of the increase.

On November 22, 2016, a federal judge in Texas preliminarily enjoined the DOL from enforcing the new regulations, only days before they were scheduled to take effect. The rationale for the court’s ruling was that the DOL did not have the legal authority to use salary level as a criterion for determining whether an employee qualifies for one of the white-collar exemptions. In other words, the DOL was limited to using a “duties test” to determine exempt status.

The DOL, in the waning months of the Obama Administration, sought an expedited appeal, but even an expedited appeal could not be completed before the Trump Administration took over. Lower court decision was wrong, Trump’s DOL argues in its appeal.

Common Sense Counsel: As if employers have not been on the wage & hour seesaw for long enough! Expect from Trump’s DOL a new notice of proposed rule-making on the “overtime rule” within the next few months. Look for a weekly salary number closer to $700 with no indexing. So don’t shred all of your wage analysis and employee announcements on changes just yet.

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 teden@constangy.com or 334-246-2901 and blog at www.alabamaatwork.com. Part of the above analysis column appeared in the Constangy Newsletter authored by Tommy’s Washington D.C. partner Jim Coleman.

Thursday, June 29, 2017

OSHA Punts Electronic Reporting Regulations


By: Thomas Eden

The Occupational Safety and Health Administration proposes to give employers until Dec. 1 to electronically submit injury summaries — and will propose changing other parts of the rule.

OSHA was going to require certain employers to submit their Form 300A annual injury and illness summaries electronically. This requirement was part of the Agency’s new final rule to “Improve Tracking of Workplace Injuries and Illnesses,” promulgated during the Obama Administration. Electronic versions of the Form 300A summaries for 2016 would have been due July 1 (this Saturday).
However, the Agency published a Notice of Proposed Rulemaking in Wednesday’s Federal Register to extend the July 1 deadline for five months, until December 1, 2017. In addition to proposing the five-month delay, OSHA announced in the Notice that it intends to issue a separate proposal to reconsider, revise, or remove other provisions of the new injury and illness tracking rule. Besides the electronic submission requirement, that new rule, issued on May 12, 2016, also includes controversial new anti-retaliation requirements that OSHA interpreted as restricting post-injury drug testing and incident-based safety incentive programs. Also controversial, and likely to be part of OSHA’s planned reconsideration, was the Obama Administration’s plan to post the injury and illness information submitted by employers on OSHA’s website. OSHA will accept comments on the due date extension proposed in Wednesday’s Notice until July 13, but will not yet consider any comments on other provisions of the new rule.

Primarily, the new injury and illness tracking rule requires larger establishments with at least 250 employees at any time during the previous calendar year to submit their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries to the Agency through a new website that would allow, with very limited exceptions, for public access to that information. Smaller establishments, with at least 20 employees, in certain industries with high injury and illness rates, are required to submit the information from their 300A Annual Summary to the new OSHA injury and illness website each year. These electronic submission requirements were to be phased in over a two-year period. Before Wednesday’s proposed extension, both larger and smaller establishments would have been required to submit their 300A Forms – but not the OSHA 300 logs or the 301 Incident Reports – by July 1.

Common Sense Counsel: This is a most favorable announcement from OSHA, but will require that you stay tuned as we monitor for additional information about the extension and other possible changes to the rule and OSHA’s interpretation of it. Employers who previously discontinued post-accident drug testing should seriously consider post-accident drug testing on a regular basis. I am of the opinion that there will be no OSHA enforcement until after Dec. 1 and employers should take advantage of this window of opportunity.

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 teden@constangy.com or 334-246-2901 and blog at www.alabamaatwork.com

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 www.alabamaatwork.com or email teden@constangy.com