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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 or 334-246-2901. Blog at 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 or 334-246-2901. Blog at 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 or 334-246-2901. Blog at

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 or 334-246-2901. Blog at