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Friday, March 31, 2017

Highly Effective HR Habits (April Fool’s edition)

Fake nail through finger prank - April Fools' Day
By: Thomas Eden

Habit 1: Discriminate, retaliate, harass — have a ball! There’s a new sheriff in town, with a more employer-friendly, compliance-assistance-oriented U.S. Department of Labor (we think) and the nullification of burdensome regulations like the Fair Pay Rule. That means you can go wild. What are your employees going to do about it?

Habit 2: “Opaque” is not just for black tights. It’s good to keep your employees in the dark about things like their how their pay is determined, your company’s business, your criteria for evaluating performance or for bidding on vacant jobs. If they know what’s going on, they’ll just complain and use it against you.

Habit 3: Play favorites. Favor employees based on their race, ethnic group, religion, or age. But don’t stop there. Choose your “pets” based on anything — who they’re related to, who is the best looking and give them all the breaks.

Habit 4: You’re in a right to work state, so fire at will! The law says you can fire an employee for a good reason, a bad reason, or no reason at all. If somebody looks at you wrong, boom. They’re gone.

Habit 5: Downsize safety. Personal protective equipment, safety rules — heck, do you know how much a Safety Manager costs? Then you have those oppressive rules about lock-out/tag-out that require employees to wait until a machine is turned off and the power disconnected before they can reach inside to tighten a screw. All of that “waiting” is time, and time is money. De-emphasize safety, and you’ll save a bundle.

Habit 6: Be arbitrary and capricious. Follow your whims! Let your gut be your guide! Hire the first person who walks in the door because he told a good joke in his interview. When you’re making compensation decisions or doing performance evaluations, go with the mood you are in.

Habit 7: Replace troublemakers with people who appreciate you. Do you have an employee who complains that his pay is too low? Or that the company doesn’t treat people equitably? Maybe the employee has filed an EEOC charge. Who needs this aggravation? Replace ’em all with people who would jump at the chance to work below minimum wage.

Habit 8: Life is too short for wage and hour. Don’t fritter away your life with details about “exempt” and “non-exempt” classifications, or nitpicky timekeeping requirements for employees who answer emails, take work-related calls, or perform other work outside their regular work hours. Life is so much easier if you “simply” assume everybody gets paid for 40 hours a week.

Habit 9: Be well, or be gone. Enough with these employees who were hurt on the job, or need “reasonable accommodation” for disabilities or pregnancy, or need time off to go to the doctor. People who aren’t “100 percent” should stay home and collect disability benefits, not from your company because that would make your premiums too high.

Habit 10: Pay no attention that yesterday was April HR Fool’s Day!

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL a member of the ABA Section of Labor and Employment Law He can be contacted at or 334-246-2901. This is condensed from the Constangy Blog post of Tommy’s Law Partner, Robin Shea.  

Friday, March 24, 2017

OSHA Catches Midnight Rider

By Thomas Eden

On February 20, 2014, during the first day of shooting for the film “Midnight Rider,” about the Allman Brothers Band, as the Film Allman crew set up to shoot a scene on the Doctortown train trestle—an active trestle owned by CSX Transportation (“CSX”) that spans the Altamaha river in Jesup, Georgia—a freight train barreled through, killing a 27-year-old female camera assistant and seriously injured several other Film Allman crew members. Film Allman supervisors “knew the railroad tracks were live tracks, in active use by CSX, and that CSX had refused permission to film on the tracks,” the 11th Circuit Court of Appeals ruled on March 20. 

“None of Film Allman’s supervisors informed the crew and cast members that CSX would not be on site and would not be controlling train traffic on the trestle while they were filming on the tracks. In short, Film Allman put its employees in harm’s way, and the results were catastrophic,” found the 11th Circuit panel in its decision affirming a $70,000 OSHA fine for willfully violated Section 5(a)(1) of the Occupational Safety and Health Act (“OSHA”), which is often referred to as the “general duty clause.” 

The 11th Circuit went on to hold “the Commission correctly upheld the Secretary’s invocation of the informer’s privilege (informer’s privilege allows OSHA to withhold certain portions of witness statements that OSHA obtained during its investigation), substantial evidence underlies the Commission’s classification of Film Allman’s violation of Section 5(a)(1) as willful, and the Commission did not abuse its discretion in imposing the statutory maximum ($70,000) penalty against Film Allman.”

Common Sense Counsel: In 1970 the Allman Brothers Band released Greg Allman’s song Midnight Rider. Part of the lyrics went “I got to run to keep from hidin'; and I'm bound to keep on ridin'; I got one more silver dollar; I got only the clothes I'm wearin'; and the road goes on forever; not gonna let 'em catch me now; keep on riding - midnight rider.” That was the scene the Film Allman crew was seeking to create on the Doctortown train trestle. 

The lesson in the tragic story is that no employer, not even Hollywood producers, are immune from their OSHA Section 5(a)(1) duty to provide employees a safe place to work free from recognized hazards. Sometimes it takes a trained professional who knows the regulations to help you recognize those hazard before your employee takes that “midnight ride.” 

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL a member of the ABA Section of Labor and Employment Law He can be contacted at or 334-246-2901. Blog at with link to decision. 

Tuesday, March 14, 2017

Failing to Conform to Gender Stereotype Claims Increase

By Thomas Eden

Jameka Evans worked at Georgia Regional Hospital as a security officer from August 1, 2012, to October 11, 2013, when she left voluntarily. During her time at the Hospital, she claimed that she was denied equal pay or work, harassed, and physically assaulted or battered. Evans also alleged that she was discriminated against on the basis of her sex and targeted for termination for failing to carry herself in a “traditional woman[ly] manner.” Evans presented herself as a gay woman, who claimed in her pro se lawsuit that while she did not broadcast her sexuality, it was “evident that she identified with the male gender, because of how she presented herself (male uniform, low male haircut, shoes, etc.).”

Evans contended she was punished because her status as a gay female did not comport with her supervisor’s gender stereotypes and this caused her to experience a hostile work environment. After Evans lodged her complaints about these violations, her supervisor asked Evans about her sexuality, causing Evans and “others” to infer that her sexuality was the basis of her treatment.

Attached to Evans complaint was a “Record of Incidents.” This report stated that her supervisor had repeatedly closed a door on Evans in a rude manner, that she experienced scheduling issues and a shift change, that a less qualified individual was promoted as her supervisor, she was scrutinized and harassed and that someone had tampered with her equipment, including her radio, clip, and shoulder microphone.

In a case likely headed to the U.S. Supreme Court, the split Eleventh Circuit panel on March 10 held that Anti-Gay Bias is not prohibited under Title VII. This was an affirmation of the district court’s dismissal of Evan’s suit against the hospital alleging she was harassed because she’s a lesbian and didn’t conform to gender norms, relying on a decades-old 11th Circuit decision that “discharge for homosexuality isn’t prohibited under Title VII.” However, the panel vacated the district court’s order dismissing Evans’ claim that she was discriminated against for “failing to conform to gender stereotypes,” and remanded it back to the lower court with instructions to grant her leave to amend that claim. 

In a concurring opinion, Circuit Judge William H. Pryor Jr. (on the Trump Supreme Court list) wrote: “unsurprising reality that some individuals who have experienced discrimination because of sexual orientation will also have experienced discrimination because of gender nonconformity by no means establishes that every gay individual who experiences discrimination because of sexual orientation has a ‘triable case of gender stereotyping discrimination.” 

Common Sense Counsel: this appears to be a case where stray word by a supervisor about Evan’s “sexuality” complicated a simple discharge, and otherwise non-actionable slights. There is simply no substitute for training your supervisors in effective and defensible discipline and termination. Also, the new claim of “failing to conform to gender stereotypes” appears to be gaining traction in the courts. So 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. 

Thursday, March 9, 2017

How Do Employers Win Disability Related Misconduct Cases?

By Thomas Eden

Janna DeWitt had Type I diabetes and is insulin dependent requiring her to monitor her blood sugar levels numerous times per day. She worked for SWBTC, a telephone service company with a customer-service call center in Wichita, as a customer service representative beginning in April 1997. When DeWitt’s blood sugar levels are relatively low, she claimed to experience sweating, shakiness, fatigue, lethargy, confusion, and poor coordination. DeWitt told her managers at SWBTC that she had diabetes and that she may experience low blood sugar levels and need to eat or drink something to correct them. Throughout her employment at SWBTC, the company allowed DeWitt to take breaks to eat or drink to raise her blood sugar as needed. DeWitt used FMLA leave intermittently for health issues related to her diabetes, but only took FMLA leave when vacation days were not available. 

On January 21, 2010, DeWitt mistakenly left phone service on a customer’s account after the customer cancelled the service. Known as a cramming violation, the failure to remove a service plan from a customer’s account after the customer cancels the service is a violation of the SWBTC Code of Business Conduct and a terminable offense. DeWitt was suspended the following day. 

On January 29, 2010, DeWitt attended a “Day in Court” to address the cramming incident and determine her punishment. As punishment for the cramming violation, DeWitt signed a Last Chance Agreement which stated that “even one incident of failing to maintain satisfactory performance in all components of [her] job, including . . . company policies and conduct may lead to further disciplinary action up to and including dismissal.” 

On March 3, 2010, two months after the cramming incident, DeWitt suffered a severe drop in blood sugar while at work which she claimed caused her to experience lethargy, disorientation, and confusion, and was “unable to communicate with anyone,” as her First Line Supervisor monitored her calls and noted that she had hung up on at least two customers. Later that day, a suspension meeting was conducted with DeWitt regarding the two calls she had dropped earlier in the day in which DeWitt claimed she had been experiencing “dangerously low blood sugar levels at the time of the calls.” 

On March 10, 2010, SWBTC conducted Dewitt’s Day in Court regarding the dropped calls at the end of which SWBTC terminated DeWitt for hanging up on two customers in violation of both the SWBTC Code of Business Conduct and her Last Chance Agreement. Dewitt then sued SWBTC in federal court under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA).

The Tenth Circuit Court of Appeals on January 18, 2017, ruled that the ADA and FMLA do not require employers to excuse an employee’s misconduct even though the conduct was related to the employee’s disability and affirmed the dismissal of her case. 

Common Sense Counsel: this is a situation concerning so-called disability-related misconduct. This case makes clear that after-the-fact accommodation requests for leniency are not reasonable and that so long as the work rule at issue is consistent with “business necessity,” disabled employees can generally be held to the same conduct standards as other employees. The Last Chance Agreement, clear handbook rules, a well drafted essential functions job description and Day in Court due process were critical reasons for this employer’s win. 

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

Thursday, March 2, 2017

What in Trump’s Paid Family Leave Plan?

By Thomas Eden

President Trump’s address to Congress Tuesday night didn’t have much on labor and employment issues, apart from the creation of jobs (which is no small thing and would be awesome if it pans out). But he did mention “paid family leave,” ever so briefly.

Credit (or blame) for the concept of paid family leave goes to the President’s daughter Ivanka, herself a businesswoman and mother of two young children.

The plan is still a work in progress, but here is a broad outline as it currently stands:

Moms would be entitled to six weeks of paid maternity leave, which would be financed through state unemployment systems. There has been talk that restricting the leave to mothers is unconstitutional. But because new mothers are uniquely situated in the first six weeks after the birth of a child (in other words, they’re the only ones who have an actual physical disability), which I think would eliminate any equal protection concerns. In any event, it now appears that the concept may be expanded to include fathers and LGBT parents who did not give birth to the child. If they do that, I don’t see how they couldn’t expand it further to include all adoptive parents, so be on the lookout for that, too.

Families would be entitled to a tax deduction for child care expenses. As it stands now, the deduction would be available to parents with annual income of less than $250,000, and to couples with income of less than $500,000. The less-well-heeled would be entitled to an earned income tax credit for child care. Right now, there doesn’t appear to be anything for parents whose income is so low that they don’t pay taxes, and arguably they are the most in need of help with child care expenses.

According to some reports, some Democrats have indicated a willingness to work with Trump because they generally favor paid family and medical leave, and they see Ms. Trump’s proposal as giving them a foot in the door. For the same reason, resistance is expected to come from Republicans, and also because the plan as it currently stands is estimated to cost about $500 billion over the next ten years. Ouch!

Common Sense Counsel: This is a work in progress. A lot is sure to change before a plan is formally presented to Congress. Stay tuned as we began the ups and downs of the Trump labor and employment law train of change!

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP office in Opelika, AL and can be contacted at or 334-246-2901. This entertaining update was given by my Partner Robin Shea in a blog post this week. Blog at www.alabamaatwork with link.