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Friday, April 28, 2017

Monday May-Day: 5 Tips to Keep Your Workplace Running Cool During Political Protest

By Thomas Eden

On Monday May 1 thousands of workers nationwide will take part in anti­-Trump or pro-­immigration protests. This will present a challenge for employers to keep their cool with employees who desire to express themselves, and their business running.

Monday is the 131st anniversary of the Haymarket riots, which eventually lead to the recognition of May Day. The Haymarket affair (also known as the Haymarket massacre or Haymarket riot) took place at a labor demonstration on Tuesday May 4, 1886, at Haymarket Square in Chicago. 

What began as a peaceful rally in support of workers striking for an eight-hour day exploded into a riot when a dynamite bomb was thrown at police as they dispersed the rally. The bomb, and then gunfire, resulted in the deaths of seven Chicago police officers, four civilians, and later four bomb makers were hung. No single event has more influenced the history of labor law in the United States.  In 1935 Congress enacted the National Labor Relations Act 1935 to protect the rights of employees and employers, to encourage collective bargaining, to curtail certain private sector labor and management practices, and generally create a more peaceful management-labor process.

Common Sense Counsel

5 Tips to keep your workplace respectfully calm during times of political strife:

1)         Be Consistent and Neutral on Policy Application. An employee walkout or absence for a protest is much like an employee absence for a vacation or a walkout over a disagreement. If you would let your workers off for any other reason, let them off to protest. Political rallies are often planned around midday so workers can use their lunch break to attend. If you normally let a worker run a quick errand, do so for a political rally.

2)         Apply your policy as if politics weren’t involved.  If you allow workers to take off with a minimum notice of 24 hours - let them off to protest. But if that same worker skips Monday without notice, take consistent disciplinary action short of discharge.  

3)         Political Speech may be protected. While political speech by private workers is not federally protected, there is a thin line with protest for immigration, women’s right, LGBT, religion, etc and you don’t want to guess wrong. Public­sector employees have a First Amendment right to speak their minds.

4)         The NLRA bars acting against employees who engage in protected concerted activity. Expressions that have a connection to concerns in the workplace or working conditions, is fair game, even for nonunion employees.  Potential violations of those protections under the NLRA may earn you an unfair labor practice charge.

5)         Treat Political Speech like any other and Pass the May-Day Test. When political speech becomes hate speech directed to a protected employee category, an employer must act or risk facing an EEOC Charge or suit for permitting harassment or a hostile work environment. Employees at work could have a conversation about Auburn/Alabama football that touches on race, arrest records, aged fans tree killing, etc. and it offends a group of employees. The wise employer wouldn’t hesitate to act in that situation. A political conversation is no different -regardless of your grit-iron affiliation.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and can be contacted at or 334-246-2901 and blog at

Monday, April 24, 2017

Standing Firm: Workplace Solutions for Opiate Use and Abuse

There's Still Time to 
Participate in the Survey from:
Standing Firm: Workplace Solutions for Opiate Use and Abuse 

Sponsored by

Featuring Thomas M. Eden III and Chauncey B. Thuss JR., MD 

Alere Toxicology and Tommy Eden invite attendees to participate in a 10 minute survey: Standing Firm: Workplace Solutions for Opiate Use and Abuse a Post-Webinar Survey! These are the same questions reviewed in the presentation and results of this survey will be shared with all participants. This survey will only be available through Friday, April 21st.  We appreciate your feedback.
Click on link to participate in this Survey

Click on links for Recording and Slides
Register Here for Alere Toxicology's May 10th webinar "Emerging Drug Abuse Trends in the News" presented by Pat Pizzo.

We look forward to your attendance at future presentations and programs hosted by Alere Toxicology.
Alere Toxicology

Friday, April 21, 2017

How to Mishandle FMLA Fibbing

By Thomas Eden

Rodney Jones served as Activities Director for Accentia, a long-term-care nursing facility in Tampa Bay until he was fired in 2015, per court records. His duties included keeping up with resident charting and care plans, providing calendars for programming events, and arranging entertainment activities for the residents. While Jones’s job involved substantial desk work his duties also included regular physical tasks such as unloading vehicles. Jones also had five assistants to help execute activities.

Jones learned in 2014 that he needed to undergo shoulder surgery in order to repair his torn rotator cuff. Accentia determined that Jones was eligible for FMLA leave and granted him time off from September 26, 2014, until December 18, 2014. However, at the end of his leave, his doctor said he could not yet go back to work preforming the physical tasks like unloading vehicles but could perform his desk activities while he continued rehab.

At that point, Jones asked his supervisor if he could return on light duty, but his supervisor refused insisting “full duty only.” Jones then requested and was granted
30 days of additional non-FMLA leave.

Jones continued his weekly rehab, but twice visited the Busch Gardens theme park in Tampa Bay and went on a three day trip to St. Martin to visit family. He posted photos from these trips on his Facebook page.

Jones eventually returned to work on January 19, 2015, at which time Jones presented his supervisor with a fitness-for-duty certification confirming that Jones could immediately resume his job as Activities Director. His supervisor responded by showing Jones the photos from Jones’s Facebook page, which depicted the trips that he had taken while on medical leave. When Jones asked how he had obtained the photos, he responded that “you can thank your wonderful staff, they just ratted you out,” but also remarked that “maybe if you’re going to have a Facebook account, you shouldn’t have it on public.” Based on these Facebook posts, “corporate” believed that Jones had been well enough to return to work at an earlier point and terminated his employment.

On his FMLA Interference and Retaliation federal lawsuit, this week the Eleventh Circuit ruled that Jones, had shown enough facts to support his FMLA retaliation claim, including that the termination happened shortly after he returned from leave so that it could be temporally connected to his FMLA leave to present to a jury. The appeals court said the timing measure should be from the end of the worker's leave, not the beginning. There was also evidence of statements that the facility was not happy that Jones had taken FMLA during a resident survey period.

Common Sense Counsel: While having a compliant FMLA policy is critical, teach your supervisors  these 
     4 How to Mishandle FMLA Fibbing lessons
1) don’t tell your employee you are using Facebook to surveillance their activities – asking for a lawsuit;

2) allow them to return on light duty, maybe intermittent leave, and do not insist on a “full duty” release when not necessary; 

3) make no critical or derogatory comments about the employee exercising a federally protected right – loose lips sink companies; and 

4) timing is everything – give breathing room after protected conduct.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and can be contacted at or 334-246-2901 and blog at with link to full court opinion.

Friday, April 14, 2017

Nazarite Vow and Hair Drug Testing Clash

By Thomas Eden

Stephen Fasuyi applied for a utility technician position at a U.S. Steel Tubular Products, Inc. (USSTP) and received an oral employment offer per court filings. The job offer was contingent upon his successful completion of a pre-employment drug test. Fasuyi belongs to the Nazirite sect of the Hebrew Israelite faith, and he sincerely believes that the Old Testament forbids him from cutting hair from his scalp, just like Samson in Judges 13. Found at one of the three vows “Let the locks of hair on his head grow long.”

During a hair follicle drug test the same day he received a job offer, Fasuyi declined to have a lock of his hair cut starting at the scalp, but he offered alternatives, such as pulling hair from his beard, which seemed consistent with the drug test protocol. Fasuyi nevertheless was instructed to go home without the examination being completed, and was denied the opportunity to re-test on a different date.

Fasuyi subsequently applied for other vacancies at USSTP, including another utility technician position for which he initially was scheduled for an interview, only to have the interview later canceled by the company.

The Equal Employment Opportunity Commission (EEOC) later sued USSTP under Title VII of the Civil Rights Act of 1964 contending that Fasuyi's religious beliefs should have been accommodated during the pre-employment testing, and that USSTP ultimately denied him employment because of his religion and in retaliation for his opposing what he believed to be religious discrimination. The Houston Texas case was headed for a jury trial on the issue of whether Fasuyi had made USSTP aware of his religious objection to the drug testing format before the company rescinded its employment offer.

The EEOC on Monday announced a two­-year consent decree it reached with USSTP, in which USSTP will pay Fasuyi $150,000 and promises not to engage in any further discriminatory conduct and committed to considering accommodation requests from job applicants of faith.

Common Sense Counsel: Religious accommodation is an EEOC hot button and the Courts appear to agree. Title VII prohibits among other things:

•  disparate treatment based on religion in recruitment, hiring, promotion, benefits, training, job duties, termination, or any other aspect of employment (except that "religious organizations" as defined under Title VII are permitted to prefer members of their own religion in deciding whom to employ);

• denial of reasonable accommodation for sincerely held religious practices, unless the accommodation would cause an undue hardship for the employer;

•   workplace or job segregation based on religion;

•   workplace harassment based on religion;

•  retaliation for requesting an accommodation (whether or not granted), for filing a discrimination charge with the EEOC, for testifying, assisting, or participating in any manner in an EEOC investigation or EEOC proceeding, or for opposing discrimination.

So when faced with an issue of religion, first review the EEOC Religious Garb and Grooming in the Workplace: Rights and Responsibilities and be in an accommodating mood.

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.

Saturday, April 8, 2017

Trump’s Aggressive Immigration Enforcement Begins

By Thomas Eden

Both the U.S. Citizenship and Immigration Services and the U.S. Department of Justice issued public statements Tuesday announcing the adoption of aggressive efforts to address purported discrimination against U.S. workers stating: “American Workers First by combating fraud in our employment based immigration programs is a priority for USCIS.”

Effective immediately, the USCIS and the DOJ are implementing measures to identify employers who favor H-1B visa holders over U.S. workers. The H-1B visa program allows companies to recruit and temporarily hire highly skilled foreign workers into specialty occupations. Although the USCIS will continue to conduct random and unannounced visits nationwide, the agency has specified that starting immediately it will take a more targeted approach when making site visits across the country. 

The onsite visits will focus on the following:
Small U.S. employers whose business information is not publicly available;
H-1B-dependent employers (who have 50 percent or more employees on H-1B visa status); and
Employers petitioning for H-1B workers who will work off-site for a third party or client.

During these site visits, as in the past, the USCIS will verify H-1B workers’ wages, job duties, and work locations through interviews and inspections of public access files. If the USCIS suspects fraud or abuse, it may refer cases to U.S. Immigration and Customs Enforcement or to the Immigrant and Employee Rights Section of the DOJ for further investigation.

Per the USCIS, the following examples indicate possible H-1B fraud: 
The H-1B worker is not or will not be paid the wage certified on the Labor Condition Application (LCA).
There is a wage disparity between H-1B workers and other workers performing the same or similar duties, particularly to the detriment of U.S. workers.
The H-1B worker is not performing the duties specified in the H-1B petition, including when the duties are at a higher level than the position description.
The H-1B worker is not working in the intended location as certified on the LCA.

The USCIS has also established an email address dedicated to receiving complaints of a company’s suspected misuse of the H-1B visa program. To encourage reporting, the agency has established protections for H-1B workers who can demonstrate that they faced retaliation for reporting H-1B fraud or abuse.

Common Sense Counsel: it has become increasingly difficult for employers to sponsor foreign workers with H-1B visas. For the current “cap” season, it is expected that as many as 250,000 H-1B visa petitions may be filed by employers for the 85,000 new H-1B visas available each U.S. fiscal year. The USCIS conducts a “lottery” to randomly select 85,000 petitions to process, and the remainder are simply sent back, unprocessed. In this case winning the H1-B lottery will likely get you audited!

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.