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Thursday, November 30, 2017

Monkey Selfie Legal Chuckle Appealed

In 2015 animal rights group People for the Ethical Treatment of Animals (PETA) filed a copyright infringement lawsuit on behalf of the macaque who took the infamous “monkey selfie,” claiming the animal is the legal owner of the photo. With the help of an intellectual property law firm it filed suit against the nature photographer whose camera was grabbed by a curious monkey and used to snap a picture of the ape's big toothy grin. The picture became a viral hit in 2011.

PETA claimed that the macaque, named Naruto, has the same authorship rights in the photo as any human would, meaning that the nature photographer infringed those copyrights by republishing it in a book about the infamous photo. The suit claimed that “Had the Monkey Selfie been made by a human using the unattended camera, that human would be declared the photographs’ author and copyright owner while the claim of authorship by species other than homo sapiens may be novel, 'authorship' under the Copyright Act … is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto… Naruto authored the picture through his independent, autonomous actions in examining and manipulating the unattended camera and purposely pushing the shutter release multiple times, understanding the cause-and-effect relationship between pressing the shutter release, the noise of the shutter, and the change to his reflection in the camera lens.”

In 2016 a California federal judge issued a written ruling explaining his decision to toss the PETA "monkey selfie" lawsuit. He ruled there was no indication that Congress believed nonhuman animals could be authors that have standing to sue under the Copyright Act. The Judge noted "The Copyright Office agrees that works created by animals are not entitled to copyright protection … It directly addressed the issue of human authorship in the Compendium of U.S. Copyright Office Practices issued in December 2014." A picture of Naruto’s Selfie was used as the example by the Copyright Office.

Following the Judges decision, PETA's general counsel claimed the group would "continue to fight for Naruto and his community, who are in grave danger of being killed for bush meat or for foraging for food in a nearby village while their habitat disappears because of human encroachment." And fight they did with an appeal to the Federal 9th Circuit Court of Appeals.

During oral argument before a Ninth Circuit panel one of the judge pressed the PETA attorney on how an ape has been harmed by the alleged copyright infringement of a famed monkey selfie, “There’s no way for the monkey to acquire or hold some money, there’s no loss to reputation. There’s not even an allegation that the copyright could have benefited somehow Naruto. What financial benefits apply to him? There’s nothing."

To the relief of all, PETA agreed in September 2017 to drop the infringement claims and in return, the nature photographer will pay 25 percent of any future proceeds from the "monkey selfie" toward related conservation charities.

Common Sense Counsel: Be careful not to let your pet click the selfie.


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

Thursday, November 16, 2017

Part 40 Final Rule - DOT Summary of Changes

2018 TO DO LIST FOR DOT EMPLOYERS 

On November 13, 2017, the Department of Transportation (DOT) published a final rule in the Federal Register (82 FR 52229)(much of this update is taken from the extremely well written release by ODAPC).  The rule, among other items, added four semi-synthetic opioids (i.e., hydrocodone, oxycodone, hydromorphone, oxymorphone) to the testing panel for all DOT regulated employees including FMCSA, PHMSA, FAA, USCG, FRA and FTA.  It also added methylenedioxyamphetamine (MDA) as an initial test analyte and removed the testing for methylenedioxyethylamphetaime (MDEA).
When is the final rule effective?
     The final rule is effective January 1, 2018.

What does this mean for employees?
     In addition to DOT 5 panel, you will also be tested for four semi-synthetic opioids (i.e., hydrocodone, oxycodone, hydromorphone, oxymorphone).  Some common names for these semi-synthetic opioids include OxyContin®, Percodan®, Percocet®, Vicodin®, Lortab®, Norco®, Dilaudid®, Exalgo®.  In addition, you will no longer be tested for MDEA.

What does this mean for employers and Consortium/Third Party Administrators (C/TPA)?
     As an employer or C/TPA, you will no longer be required to submit blind specimens to laboratories.

What does this mean for urine collectors?
     The shy bladder process has been modified so that the collector will discard any specimen provided during the collection event when the employee does not provide a sufficient specimen by the end of the three hour wait period.

What does this mean for laboratories?
   As an HHS-certified laboratory you will:
  • Add four semi-synthetic opioids: hydrocodone, oxycodone, hydromorphone; oxymorphone to your DOT testing panel;
  • Add MDA as an initial test analyte;
  • Remove testing for MDEA;
  • Add three more fatal flaws to the list of reasons when a laboratory would report a ‘rejected for testing’ specimen; and
  • Need to modify the reports [in Appendix B & C] you provide to employers and the DOT.
What does this mean for Medical Review Officers (MRO)?
     Several of your MRO drug test review processes have been modified.  For example:
·      The term ‘prescription’ has been clarified to only include a prescription that is legally valid as a Schedule II Drug under the Controlled Substances Act (this would exclude Medically Marijuana under a state law);
·      You have authority to conduct D,L stereoisomer and THC-V testing; and
·      The timing when you communicate a significant safety risk or medically unqualified decision under 40.327 has been modified. [amended 40.135(e) to add a five business day pause period for the Driver’s prescribing physician to contact the MRO to determine if a non-impairing effect drug/treatment can be prescribed so that the MRO would not be required to make a safety concern or medically disqualified report to the employer].
What does this mean for alcohol technicians?
      The list of NHTSA-approved Alcohol Screening Devices and Evidential Breath Testing Devices will appear on ODAPC’s website.
What does this mean for service agents?
·         Collectors, alcohol testing technicians, MROs, and Substance Abuse Professionals will be required to subscribe to ODAPC's list-serve at:  https://www.transportation.gov/odapc/ListServe_Notices.
·         Unauthorized use of DOT-branded items (such as logos or emblems) on a service agent’s website, publications, etc., could be a basis for the DOT to initiate a Public Interest Exclusion proceeding.
What are some of the other changes to Part 40?
  • The DOT added a new section reiterating that, in the DOT testing program, only urine specimens can be collected and analyzed at HHS-certified laboratories.
  • The DOT added language further emphasizing the existing DOT prohibition on the use of DNA testing on DOT drug-testing specimens.
  • The final rule made minor modifications to certain section headings.
  • The final rule moved the list of Substance Abuse Professional certification organizations from the rule text to ODAPC's website.
  • The final rule moved the MIS instructions from Appendix H to ODAPC’s website.
  • Outdated compliance dates were removed and links were updated.
  • Appendices B, C, D, and H were updated.
Where can I find a copy of the final rule?
      You can view the final rule on ODAPC’s web site www.transportation.gov/odapc/frpubs.

    2018 To Do List for DOT Employers by Tommy Eden, Partner Constangy, Brooks, Smith & Prophete, LLP
1.      Educate your managers, supervisors and DOT Drivers on the new 49 CFR Part 40 Regulatory changes;
2.      Make sure all your DOT Service Agents are making their own changes to accommodate the Part 40 changes;
3.      Update your DOT Policy Effective 1.1.2018 to reflect these changes, in addition to the changes caused by the DOT Clearinghouse Regulation Changes Effective 1.5.2017;
4.      Educate your DOT Drivers that effective January 1, 2018, they are subject to being tested for hydrocodone, oxycodone, hydromorphone, oxymorphone and they should now examine all of their prescriptions to see if they contain any of these semi-synthetic opioids prescription drugs (see draft NOTICE TO DOT REGULATED EMPLOYEES OF NEW TESTING PANEL a link to the notice is found at www.alabamaatwork.com )
5.      Educate your DOT Drivers if they do have such a prescription as listed above, now is the time to visit with their prescribing physician to determine if they can be put on an alternative treatment or medication;
6.      DOT employers should update their job descriptions to make the ability to operate in a constant state of alertness, and safe manner an essential job duty, and also include a pre-duty impairing effects prescription medications safety policy within their DOT Policy (this should also include medical marijuana as an impairing effects substance as well even though it is not acceptable as a legitimate medical excuse under DOT);
7.      DOT employers should amend their DOT FMCSA Policy to give Drivers fair notice that the DOT Employer under 49 CFR Part 391.11, has the final authority to make fitness for duty disqualification determinations for its FMCSA Drivers.



If you need policy support, or additional information contact Tommy Eden, a Partner with Constangy, Brooks, Smith & Prophete, LLP  at teden@constangy.com or Direct: 334-246-2901/ Cell: 205-222-8030. Blog at www.alabamaatwork.com with links.  Firm website: www.constangy.com .

Link to Notice to DOT Regulated Employees of New Testing Panel.

Thursday, November 9, 2017

Hot Potato #MeToo Social Media Post Concern Employers

With the high-profile sexual harassment #MeToo movement it is a good idea to develop your employer’s plan. The movement features women posting #MeToo on social media, or in high profile TV spots, to indicate they were sexually harassed at some point in their lives. The goal of this hashtag is to draw attention to the magnitude of these previously unreported problems.

Sexual harassment in the workplace is unlawful under Title VII. However, being a “total jerk” or “just creepy” is not itself illegal or actionable unless that supervisor, manager, Hollywood producer, is just a total jerk or just creepy to women only. A #MeToo message implies that her boss may have sexually harassed her which may put your organization at risk.

Now that you, wearing your employer hat, have seen the post, what comes next? Bury your head in the sand? Ignore it? Or Be Proactive? Take action today like Speaker Ryan to nip it in the bud?

First Question: What does your Anti-Harassment Policy say?

Anti-harassment policies should include specific reporting mechanisms for employees who believe they have been subjected to unlawful harassment or discrimination. There should be two distinct reporting procedures such as call 1-800 number, or contact a specific HR representative or specified high ranking company official by title. Make sure you are specific to debunk a report that never was made. Once a complaint is submitted, the policy should provide for a prompt contact back to the employee (within 48 hours) and then a thorough (legally defensible) investigation into the allegations. There is much more I could say on the legally defensible stuff but you get the point.

 But I have never included in a policy for one of my employer clients that has a “vague post on a social network” as a designated reporting. Most “put their head in the sand” employers might take the position that “no report was made” and thus no duty to investigate. And there is in fact an affirmative defense in the law to the claims in cases involving harassment by a supervisor that does  not involve a tangible employment action if it can show that: (1) it took reasonable steps to “prevent and correct promptly any sexually harassing behavior;” and (2) the plaintiff-employee “unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise – employer published a policy with training.”

The Better Approach is to Seize a Teachable Moment

In addition to potential harassment claims, EEOC Charges, Lawsuits, totally distracted workforce, the #MeToo post reveals that your employees might benefit from anti-harassment training. Employers should strive to ensure that employees understand its anti-harassment and anti-discrimination policies and reporting procedures, as well as its commitment to preventing and correcting unlawful behavior in the workplace. The best way to do that is video training, smartphone is OK, with a request for all employees to again sign the policy. Also, great time to update your policy with a workplace civility anti-bulling policy as well. Employer training should not be focused solely on avoiding liability but also should be designed to proactively eliminate harassing and disrespectful conduct, and create a workplace environment where it is all about respect. In fact, let’s start a #MeTooItsAllAboutRespect movement!
Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com




Friday, November 3, 2017

Big Coffee Fight Brewing Over Trade Secrets


Ronald DiFabio executed a Confidentiality Agreement when he started employment with Keurig Green Mountain Inc. in which he promised that he would not, at any time, directly or indirectly, use any Confidential Information or disclose to anyone outside of Keurig any such Confidential Information. DiFabio further agreed that if he ceased to be employed by Keurig at any time, he would immediately return any property belonging to Keurig.

After DiFabio left his employment with Keurig to join SharkNinja, he violated his obligations to Keurig under his Confidentiality Agreement by asking Keurig employees to email him Keurig internal organizational charts and proprietary information about the merchandising teams at several of Keurig’s retail customers, according to a Verified Complaint filed by Keurig in Massachusetts Federal District Court this week.(Link:https://drive.google.com/file/d/1SgbH71-_qj3sMXxPPeAF7F8A8Zg6Qm6J/view?usp=sharing) Also alleged is that before his resignation from Keurig in late 2016, DiFabio removed at least nine electronic files containing Keurig’s confidential business information and/or trade secrets from Keurig’s electronic systems, as well as hard copies. He then loaded them, or “migrated them” onto SharkNinja’s electronic systems.

Co-worker Steven Turner, who signed the identical Keurig Confidentiality Agreement, resigned from Keurig in 2017 to join DiFabio at SharkNinja. According to the same Federal Court Complaint, Turner violated his obligations to Keurig under his Confidentiality Agreement by emailing, to his personal email account, and a short time before his resignation, Keurig’s Confidential Information, including highly confidential business, marketing and sales plans prepared by Keurig relating to one of Keurig’s largest customers Bed Bath & Beyond, which included a power point presentation to the customer.

This week Keurig filed suit against both employees under the Defend Trade Secrets Act (“DTSA”) which provides a federal cause of action to the owner of a trade secret that is misappropriated and is related to a product or service used in (or intended for use in) interstate commerce. 18 U.S.C. §1836(b). The Complaint included a claim under the Computer Fraud and Abuse Act (“CFAA”) which provides a private right of action where a party knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value. 18 U.S.C. §1030(a)(4).

Common Sense Counsel: CFAA and the DTSA are significant weapons to combat employee trade secret theft. Be prepared to quickly take these steps now: 1) update all non-disclosure agreements, confidentiality agreements, employment agreements, consulting agreements, and independent contractor agreements to include new DTSA non-disclosure provisions to include the required notice signed by all employees; 2) documents containing trade secrets should be labeled as confidential, their distribution should be limited, they should be maintained in secure areas, and individuals who are privy to such secrets should be trained on the nature of that information and how to safeguard it; 3) access to computer files containing such information should be restricted and tracked; 4) those with access should be trained on the files’ confidentiality; and 5) because trade secrets litigation often involves violations of non-competition or non-solicitation agreements, be prepared to bring  such claims in tandem with the DTSA and CFAA violations.

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


Thursday, October 26, 2017

Federal Judge Refuses to Slow the Demise of Obamacare


The Affordable Care Act requires health insurance companies to subsidize the cost of co- payments and deductibles for lower-income people. In turn, the Act requires the federal government to make advance payments to the companies to cover the cost of this subsidy. The legal problem in this case is that while the Act requires the insurance companies to be paid, but the Act did not actually appropriate money for these payments. If Congress doesn't appropriate money for a program, the Constitution prohibits the executive branch from spending money on that program – even if Congress previously enacted a statute requiring the expenditure.

The Obama Administration took the position that the Affordable Care Act indeed appropriated money for the payments, so it drew funds from the U.S. Treasury every month to make them. The Trump Administration initially continued this practice, but has now concluded that the Act did not actually make the necessary appropriation and terminated the payment effective October 2017, at least until Congress decides to appropriate the money.

In response, the State of California, along with 17 other states and the District of Columbia, filed this lawsuit, contending the Obama Administration was right.  They sought an emergency ruling requiring the Trump Administration to continue making the payments while the lawsuit is pending.

On Wednesday October 2017, a California Federal District Judge Vince Chhabria denied the States’ request. His ruling made these two critical findings. First, although the case is at an early stage, and although it's a close question, it appears initially that the Trump Administration has the stronger legal argument. Second, and more importantly, the emergency relief sought by the states would be counterproductive. State regulators have been working for months to prepare for the termination of these payments. That would not include the State of Alabama, from what I have been told. And although you wouldn't know it from reading the states' papers in this lawsuit, the truth is that most state regulators have devised responses that give millions of lower-income people better health coverage options than they would otherwise have had. This is true in almost all the states joining this lawsuit, including California, whose regulators issued a press release just days before the suit explaining how so many lower-income people will benefit.

https://drive.google.com/file/d/0B3p_OgTwCyq6Z1pkMHhKVWkwaVE/view?usp=sharing

Common Sense Counsel: I recently presented a plan to local industry titled President Delivers Opportunity to Lower Employer Medical Cost to band together and explore the formation of a Multiple Employer Welfare Arrangement (MEWA), with employee incentivized Health Reimbursement Accounts (HRA) coupled with wellness plans, child care scholarships, that would enjoy lower premiums, more local control of healthcare decisions and result in happier and healthier employees – an employer’s greatest asset! See my 10.15.2017 Column Trump Decides to Lower Small Business Health Care Premiums for details.  Expect the slow demise of Obamacare, sky rocking premium increases, deductibles and co-pays in Alabama in 2018. The solution to healthcare is local. It is not found in Washington. 

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 or 205.222.8030. Blog at www.alabamaatwork.com



Friday, October 20, 2017

Four Reasonable Accommodations to Watch in 2018


No. 1. FMLA/ADA coordination. Recently a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit ruled that an extended medical leave of absence is not a “reasonable” accommodation within the meaning of the Americans with Disabilities Act (ADA). According to the Court, a reasonable accommodation has to allow the employee to work. Because an employee can’t work while on an extended medical leave, leaves are governed by the Family and Medical Leave Act (as well as employer policies) rather than the ADA. The court did not rule out the possibility of short or intermittent time off as an ADA accommodation. An employee signed job description is critical to winning this battle.

No. 2. Medical marijuana accommodation. Not too long ago, the Massachusetts Supreme Judicial Court said that employers may be required under the state disability rights statute to make reasonable accommodations for the use of medical marijuana by a cardholder. The court specifically said that “reasonable accommodation” could include treating a positive medical marijuana test result as a “negative” and allowing the applicant or employee to work. Employers who have employees that report to work in jurisdictions that have: (1) legalized medical marijuana; (2) state has an anti-discrimination medical marijuana cardholder statute; and (3) state has a disability rights law, should review their Drug Testing policies and practices carefully. But if your employees are covered by a federal law that prohibits all marijuana use, such as U.S. Department of Transportation regulations, then you can continue to comply with federal law even if you’re in a medical marijuana/disability rights state. But watch out, because federal law generally does not require you to fire an employee who tests positive — it usually requires only that you remove the employee from the position that is covered. Again, your job description and DOT Policy will govern your options.

No. 3. Pregnancy accommodation. Since the Supreme Court’s 2015 decision in Young v. UPS, employers must make reasonable accommodations for pregnancy and pregnancy-related conditions. Employers with employees who need pregnancy accommodations should use what they’ve learned from making reasonable accommodations under the ADA: specifically, be open to making accommodations, engage in the interactive process with the employee, feel free to choose the least expensive/least disruptive accommodation that is still effective (allows the employee to perform the essential functions of the job), and generally treat the pregnant employee who needs accommodation the same way you would treat an employee with a disability or work-related injury. As the courts have interpreted Title VII’s pregnancy protections, “pregnancy” encompasses much more than the nine months of gestation. It includes pre-pregnancy (trying to get pregnant, trying not to get pregnant, contraceptive use, fertility treatments), gestation (including miscarriages and elective abortions), and postpartum and lactation.

No. 4. Wellness programs. This summer, a federal judge in the District of Columbia struck down the EEOC’s wellness regulations as they pertained to the ADA and to the Genetic Information Nondiscrimination Act (GINA). In a nutshell, the regulations allowed employers to use financial and other incentives (within limits) to get employees to participate in employer wellness programs. Rather than vacate the regulations, the judge remanded them to the EEOC to fix. The EEOC now says that it will issue revised regulations sometime in 2018. Expect those to be more employer friendly to making healthcare more affordable for employers.


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. Parts of this Column were part of a Constangy Blog Post Robin Shea. Blog at www.alabamaatwork

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