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Friday, January 27, 2017

Amtrak Engineer in Crash Tested Positive for Marijuana, Opioids, Says NTSB


By Thomas Eden

In the early morning of April 3, 2016, in clear weather conditions, an Amtrak locomotive engineered by 47-year-old Alex Hunter, slammed into a backhoe on the tracks, killing two veteran Amtrak employees. There were 341 passengers and seven crew-members aboard Train 89 traveling from New York City to Savannah. Among the passengers, 35 were transported to local hospitals in Chester, PA with non-life-threatening injuries.

According to an NTSB report released yesterday, Train 89 was traveling at 106 mph — within the track speed of 110 mph — but by the time Hunter applied the emergency brake, and laid on his whistle six seconds prior to the crash, it was on a collision course with the backhoe and the two Amtrak workers operating it. Hunter then laid flat on the floor of his locomotive as it lifted off the tracks.  Miraculously, none of the passenger cars came off the track.

In accordance with Federal Railroad Administration (FRA) regulations, all members of the Amtrak crew provided blood and urine specimens for post-accident toxicological testing. Hunter's samples returned positive results for cannabinoids and opioids, according to the NTSB report.

NTSB post accident interviews with an Amtrak's foremen indicated that a miscommunication between the night and day foremen resulted in Train 89's failure to take note of the backhoe stationed on Track 3 where the accident occurred.

Common Sense Counsel: Months after the fatal Philadelphia train crash last year, the Federal Railroad Administration (FRA) finalized a proposal to require all maintenance-of-way workers to undergo the same random and post-incident drug and alcohol testing as train crew members.

The Washington Post reported in September 2016 that the number of railroad workers involved in accidents who tested positive for drug use had dramatically increased in 2016, with nearly 8 percent of workers involved in rail accidents were positive for drug use, including marijuana and various of other illegal and impairing effect drugs. The Post noted that the number of post-accident drug-positives was the highest since the FRA began keeping records in 1987.

This deadly crash is a stark reminder to all regulated and non-regulated employers that it is important to learn how you can Stand Firm Again Marijuana in your workplace.

Tommy Eden is a partner working out of Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA offices, leads Constangy’s Workplace Drug & Alcohol Testing Services and drafts drug-free workplace polices in all 50 states for DOT and non-DOT employers. Tommy can be contacted at teden@constangy.com or 334-246-2901.


Friday, January 20, 2017

2017 Top 7 Employer Resolutions

By Thomas Eden

As President Trump was sworn in and then gave his "every-man" speech, employers can expect a multitude of regulatory changes with the wind at their backs. Keeping these 7 Resolutions during 2017 will allow you to look back with no regrets:

 1)  Weed Through the Thicket of Marijuana Laws, New DOT Regulations, OSHA Post Accident Testing obligations and Create a Drug Free Culture

Employer Challenges:
·         28 states now have medical marijuana and/or recreational laws and opiate drug abuse is rampant
·         all of these laws are different and at least nine states have protection for medical marijuana cardholders
·         DOT Clearinghouse regulations became effective January 5, 2017 that will affect every CDL holder and DOT employer
·          OSHA post-accident drug testing regulations became effective on December 1, 2016

2)  Adopt Legally Compliant Harassment Policies, and Consistently Enforce Them, to Stop Bullying, Disrespectful Behaviors and Acts of Prejudice

Employer Challenges:
·         workplace harassment was the number one most costly claim for employers in 2016
·         disrespectful and bullying behavior, and acts of prejudice are destructive to a team can do all culture
·         updated training and policies in line with current culture and communication expectations is lacking
·         few workplaces have a written plan for how to handle a harassment claim and bring it to early internal resolution

3)  Learn the 7 Leadership Secrets of Undercover Boss and then Put on the Wig

 Employer Challenges:
·         wanting to have their voice heard is the number one desire/complaint of employees
·         how do you put a face and name on decisions of the company
·         how do you create a true team environment that leads to an exceptional workplace
·         until top leadership learns the lesson - nothing changes

4)  Focus on the Future of Work in your Industry

Employer Challenges: Industry 4.0 is the current trend of automation and data exchange in manufacturing technologies and a 4th Industrial Revolution. It includes cyber-physical systems and the Internet of things. Industry 4.0 creates what has been called a "smart factory" in line with the promises of President Trump.

5)  Prepare for the Convergence of Trade Secret Theft and Cybersecurity
      
 Employer Challenges:
·  Trade secret theft is a rapidly growing global problem that converges with cybersecurity.
·         virtually all assets being digital and connected to the internet
·    unscrupulous competitors, employees, even countries, trying to take advantage to help enhance their business fortunes and economies 

 6)  Get your Form I-9s ready for an ICE audit aboard the Trump Immigration Enforcement Train

Employer Challenges:
·   Restaurant Request Lower than $90,000 Fine for Form I-9 Worker Verification Errors
·      7-Eleven Manager Gets Four Years in Immigrant Labor Scheme

7)  Prepare to Pivot on Employee Heath Care Coverage

Employer Challenges:
·      Obamacare has created a nationwide culture of part-time employees
·      deductibles and premiums have risen to unsustainable amounts
·      the Republican solution for repealing and replacing is going to create some very unique cost-saving opportunities

·    Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and will be presenting on this topic to the East Alabama SHRM Chapter at 11:00 am on January 26 where he will share solutions to help employers keep these 7 Resolutions. He can be contacted at teden@constangy.com or 334-246-2901. Visit http://eashrm.shrm.org/ for meeting info.

Wednesday, January 11, 2017

Can Race Affect Hair Drug Test Results?


 By Thomas Eden

After more than ten years of litigation, a Boston jury will now have to decide if African American police officers were treated unfairly based on the results of hair follicle drug test results. The case has been bouncing around the court system since 2005 when a group of African American officers filed a lawsuit alleging that the hair testing used by the department was more likely to turn up positives from their hair than that from their Caucasian peers.

The testing procedure involved taking a hair sample from each officer and analyzing it for the presence of cocaine, marijuana, opiates, PCP, and amphetamines, and then putting the hair through a washing process at the Lab. The Lab then seeks to determine if drugs were ingested by the donor and entrapped in the cortex of the hair. If drugs were detected in a sample, a Medical Review Officer (MRO) would conduct an investigation to determine if a legal medication could have caused the positive result. Those who tested positive were also permitted to submit a second sample for a so-called “safety-net” test. When all was said and done, 99-percent of tests on white officers came back negative while 98-percent of the black officers were negative. 

1-percent difference might not seem like a lot, but several black officers were disciplined. Nine lost a job or job offer, and one was suspended without pay until he completed a rehab program. The officers filed suit under Title VII of the Civil Rights Act of 1964 claiming that the hair testing had an illegal disparate impact on black officers. They claimed that African American hair – especially that which had been chemically treated - retains drugs at a higher rate than Caucasian hair. They also claimed that the hair testing could not always distinguish between drugs that had been ingested versus cocaine that were absorbed through the hair from the environment.

Separate U.S. District Court Judges, on two occasions, ruled in favor of the Boston police department and dismissed the case on Summary Judgment. The case then went to the 1st Circuit Court of Appeals on the 3rd prong of the disparate impact inquiry; “whether the City refused to adopt an alternative that would have met the City’s legitimate needs while having less of a disparate impact?” 

One suggestion had been to conduct a follow-up series of random urinalysis tests over 90 days on officers who received positive results on the hair test, and only discipline those who flunk one of the follow-up random urinalysis tests. The case bounced back and forth until the First Circuit decided there was no compelling evidence that showed the Boston police department made any effort to consider the officers’ proposed alternative testing process, which was claimed to have less of a disparate impact on African American police officers. 
Now the case will go to a jury.

Common Sense Counsel:  Public Law Enforcement employers need to take heed of this ruling. This case has been in the news for well over 13 years and this is a highly significant groundbreaking ruling. While the Title VII disparate impact three prong law is rather technical, for public employers having an outside drug testing expert help you evaluate vulnerabilities in your drug testing policies, processes and procedures is just smart risk reduction.  

Tommy Eden, a partner with the firm of Constangy, Brooks, Smith & Prophete, LLP offers this bit of advice in light of the recent developments:  Public Law Enforcement employers need to take heed of this ruling. This case has been in the news for well over 13 years and this is a highly significant groundbreaking ruling. While the Title VII disparate impact three prong law is rather technical, for public employers having an outside drug testing expert help you evaluate vulnerabilities in your drug testing policies, processes and procedures is just smart risk reduction.  

To learn how to avoid public employee drug testing landmines like this, join us for a FREE Informational Webinar:

Webinar: Transportation employers, are you ready for the FMCSA drug and alcohol clearinghouse?

Presenters: Thomas M. Eden, III
January 19, 2017
In December, the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration issued its long-awaited Final Rule establishing a drug and alcohol clearinghouse for holders of commercial drivers’ licenses.
· Transportation employers will be required to search the clearinghouse to determine whether current or prospective employees have “unresolved violations of the federal drug and alcohol testing regulations that prohibit them from operating a commercial motor vehicle.”

· Transportation employers and their medical review officers will also be required to report to the clearinghouse any violations of the drug and alcohol testing regulations by their current or prospective employees.

This clearinghouse rule will affect every transportation employer, holder of a commercial driver’s license, and “Service Agent” (for example, CTPAs, MROs, collectors, SAPs, Labs). Although the database will not go live until January 2020, it’s not too early to get ready. Among other things, the Final Rule contains guidance on a number of current substance abuse issues that should be followed now.
In this webinar, Constangy attorney Tommy Eden will discuss the new rule, how it will affect your Human Resources and DOT policies, and how you can be ahead of the curve in your compliance efforts.
REGISTRATION IS COMPLIMENTARY, BUT SPACE IS LIMITED
Thursday, January 19, 2017
1:00 - 2:00 p.m. ET

REGISTER NOW!

For more information, please contact Kian Wint at kwint@constangy.com.

Tuesday, January 10, 2017

Hacking Can Be Costly


By Thomas Eden

On Thursday an ex-CBS news anchor in Philadelphia, Lawrence Mendte, formally apologized in a court document to his former TV co-anchor. This was all part of a written settlement lawsuit over information he hacked from her email account.  The original lawsuit was for $15 million filed in 2008. It was claimed that Mendte spread what he learned in the emails to other news outlets. The case was set for trial on Monday. 

According to the suit, Mendte used KeyCatcher, a computer program that records keyboard and mouse activity, to get the passwords to his co-worker’s work and personal emails, which he used to break into her account more than 7,000 times over the course of two years. Mendte pled guilty in 2008 to federal criminal charges related to the email intrusion and was fired from CBS. He was later sentenced to six months of house arrest and probation. In the lawsuit, CBS was accused of negligence for its allegedly inadequate investigation of complaints that the co-worker’s email was being hacked.



Larry Mendte admitted in the Court Document the following: 


“I deeply regret my actions with respect to Alycia Lane (Plaintiff) and the harm that I caused her. I repeatedly and illegally invaded her personal e-mail accounts, obtained personal information and fed stories to the press to make it appear as if she was carrying on inappropriate relationships with men, which was untrue and unfair. In the end, I harmed her career and I clearly caused her undue and considerable emotional distress. I am deeply sorry for that. Alycia is an accomplished journalist.  I wish her and her family the best in the Future."
Additionally the judge issued the following Order against Mendle and CBS, PERMANENTLY ENJOINING them from directly or indirectly:

(1) making any comments about Plaintiff on any subject and in any public or private medium;

(2) disparaging or demeaning Plaintiff;

(3) releasing to anyone for any reason any information relating to Plaintiff that was ever in Mendte's possession that he saw or received during his employment with CBS from 2003 until the date of his termination in  2008; and

(4) releasing to any person any pleading, discovery document, testimony, or electronic communication that formed a part of the above captioned action, or any terms of the Settlement Agreement, unless Mendte has requested and received prior consent of the Court, without divulging any confidential or prohibited  information, and after notice to Lane's counsel.

Common Sense Counsel: this costly hacking case should you leave every employer with 3 thoughts: 1) I would hate to be that guy who was publically humiliated, or his employer; 2) cyber security will be on the top of my 2017 resolutions lists; and 3) I need to have in place a process so that every employee complaint is internally heard and responded to in a respectfully manner before it blows up into an EEOC Charge or Lawsuit. 

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