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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



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:  https://www.mindpt.com. 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 teden@constangy.com or 334-246-2901 and blog at www.alabamaatwork.com



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