Search This Blog

Monday, December 18, 2017

Transit Employer Hears Alabama Jury’s Message to Do Better

On December 14, 2017, a Jefferson County, Alabama jury awarded $12 million to passengers injured in a 2015 Birmingham-Jefferson County Transit Authority (BJCTA-MAX) bus crash in Fairfield, Alabama; 10 of the 15 victims in the lawsuit were plaintiffs in the case. Of the $12 million verdict, six million was for compensatory damages and six million for punitive damages. The punitive damages will be split equally between each plaintiff. Link to full article

Trial testimony was that: on Monday, February 9, 2015 the MAX driver started to slump over the steering wheel It was like he was having a seizure," the passenger witness said. Once she reached the driver's seat, the driver had fainted and the bus ran over a curb, falling 30-foot on its side into a ravine. The witness hit the floor, and upon impact the bus' wheelchair lift fell on top of her, trapping her leg underneath. The driver then fell on top of her. More than 100 rescue workers worked for two hours rescuing the driver and passengers.

Emergency crews arrived about 10 minutes after the crash, and all of the other 21 people on board were able to crawl out of the bus' windows, but the witness and the driver had to be pulled from the front of the bus. Once she arrived at the hospital, she learned the bones in her foot were so mangled, her leg was going to have to be amputated below the knee. Several of her foot bones were brought to the emergency room in a plastic bag. The witness who lost her leg was an elementary school cook

The trial testimony was that the bus driver had been involved in 14 accidents while driving a MAX bus. The bus driver, who had worked for the BJCTA since 1988, had a medical condition that caused him to faint, and the BJCTA was aware of that issue, was the trial testimony. But there was testimony that MAX had no policies or procedure in place to remove him, or other drivers who were unsafe to be on the road. Trial testimony was that the BJCTA's process involves supervisors on the scene visually evaluating employees when they arrive to work, before giving them a key card that allows them to access the bus, but those supervisors are not informed about the individual drivers' medical history or conditions though, and have no way to ensure they are taking care of their illnesses. In the drivers case, the supervisor had no way of knowing the driver had a history of fainting, nor that he had not taken his medication that day, according to trial testimony.

The lead plaintiff said the jury was most persuaded by the potential for the wreck to be prevented. "The law holds BJCTA to a higher standard than that, and I think the jury held them to a higher standard, tooThere was nothing sudden about this accident. This is the least sudden accidentIt's neglect," the trial attorney argued.

As to what the BJCTA can do to prevent another crash from happening, the attorneys argued they need to have stricter medical qualifications for their drivers. Someone who has a medical condition that causes a loss of consciousness should not be allowed to drive a bus, and should be transferred to another position within the BJCTA, and that the company leaders should familiarize themselves with their drivers' medical history, and make sure those drivers are complying with their careThe BJCTA needs to be challenged to do something... to ensure this does not happen againThe jury's message was, 'we expect better.'"

Common Sense Counsel: MAX as a Federal Transit Authority (FTA) covered employer that is required to have their FTA covered employees submit to a DOT certified medical examiner examination.  The Driver is also covered by the fitness for duty standards set forth in 49 CFR Part 391 and the regulations specifically empower the FTA employer to make the final fitness for duty decision for news and current drivers. FTA employers should seriously consider taking the following steps: 1) take the high ground by requiring a fitness for exam when you first become aware that an driver has a medical condition that raises a safety concern, or taking an impairing effect medication; 2) select an outside medical advisor who is a DOT certified medical examiner, MRO and occupational physician to guide your DOT fitness for duty process; and 3)  when making a conditional job offer to a DOT regulated driver, require the completion of a post offer medical questionnaire to be able to prove you are trying to do better. As a reminder, paste on your wall the jury admonition to MAX WE EXPECT BETTER.

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

Friday, December 15, 2017

Santa’s NLRB Early Christmas for Employers

An NLRB judge ruled that Hy-Brand Industrial Contractors, Ltd. (Hy-Brand) and Brandt Construction Co. (Brandt) were collectively joint employers and/or a single employer for purposes of the National Labor Relations Act (NLRA). Five Hy-Brand employees and two Brandt employees were discharged after they engaged in work stoppages based on concerns involving wages, benefits, and workplace safety. The work stoppages were found by an administrative law judge to constitute protected concerted activity under Section 7 of the National Labor Relations Act, and the discharges constituted unlawful interference with the exercise of protected rights in violation of Section 8(a)(1) of the Act.

On December 14, 2017, a very divided panel of the National Labor Relations Board agreed with the judge that Hy-Brand and Brandt are joint employers, but disagreed with the legal standard the judge applied to reach that finding. The judge applied the standard adopted by an Obama era Board majority in Browning-Ferris Industries of California, Inc.

In Browning-Ferris, Obama appointed Board majority had held that, even when two entities have never exercised joint control over essential terms and conditions of employment, and even when any joint control is not “direct and immediate,” the two entities will still be joint employers based on the mere existence of “reserved” joint control, or based on indirect control or control that is “limited and routine.”

The Trump appointed NLRB found that the Browning-Ferris standard is a distortion of common law as interpreted by the Board and the courts, is contrary to the Act, it is ill-advised as a matter of policy, and its application would prevent the Board from discharging one of its primary responsibilities under the Act, which is to foster stability in labor-management relations. Accordingly, the Trump appointed NLRB overruled Browning-Ferris and returned to the principles governing joint-employer status that existed prior to that decision.

Link to: Hy-Brand Order

Common Sense Counsel: every employer who uses staffing company employees and every franchisor should jump for joy with this decision. Prior to Browning-Ferris, the Board—applying common law principles (and common sense) held that the “essential element” when evaluating joint employer status “was whether the putative joint employer’s control
over employment matters is direct and immediate.” So this Christmas it is getting just a little more joyful to be an employer!

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

Tuesday, December 12, 2017

Staying Off the EEOC Naughty List

In May 2010, Chastity Jones applied to be a customer service representative at CMS, a claims-processing company in Mobile, Alabama. The position did not involve any in-person contact with customers, but called for speaking with customers only over the phone, from a large call center. She arrived at CMS a few days later dressed in a business suit wearing her hair in short dreadlocks.

Jones interviewed one-on-one with a CMS trainer who made no mention of her hair, nor did any other CMS employee who saw Jones. After her interview, CMS’s human resources manager, a white woman, informed Jones, and a number of other applicants, that they had been hired and explained that they would need to complete scheduled lab tests and paperwork before beginning employment.

After the group meeting, Jones met privately with the HR manager to talk about a scheduling conflict and to request a different date for her lab tests.  As Jones was about to leave, the HR manager asked her whether her hair was in “dreadlocks.” Jones said yes. To which the HR manager replied that CMS could not hire her with dreadlocks. When Jones asked why her dreadlocks would be a problem, the HR Manager said: “They tend to get messy, although I’m not saying yours are, but you know what I’m talking about.” Jones then told the HR Manager she would not cut her hair off.  To which the HR Manager responded that CMS could no longer hire her.

At the time, CMS had a written policy that: “All personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines. . . . Hairstyle should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable.” It had no formal written policy about dreadlocks.

The Equal Employment Opportunity Commission (“EEOC”) filed suit against CMS on behalf of Jones alleged that CMS discriminated against Jones on the basis of her race in violation of Title VII of the Civil Rights Act of 1964. The complaint alleged that “dreadlocks are black hair in its natural, unmanipulated state, and that the natural texture of black hair carries with it a deeply entrenched racial stereotype.” The Mobile Federal Judge dismissed the action based on the pleadings alone holding that dreadlocks are a “mutable characteristic” not protected by Title VII.

On Tuesday of this week the 11th Circuit Court of Appeals in Atlanta let the dismissal stand, and declined to reconsider as a full court a ruling that Title VII of the Civil Rights Act does not protect wearing dreadlocks because they are not an “immutable” characteristic of blackness.

Common Sense Counsel. This case comes on the heels of a Publix’s case 6 weeks ago with an opposite outcome because those dreadlocks were linked to the applicant’s Rastafarian religion. So if you want to stay off the EEOC naughty list, make your top 5 list and check it twice:1)  understand an employee only has to prove a good faith conviction to request a religious accommodation; 2) be accommodating to an employee religious services scheduling request; 3) be most careful before rejecting a religious connected garment or hairstyle request; 4)  be mindful of opposition to mandated vaccine request based on religious or disability reasons; and 5) start the New Year on the right track by conducting a policy review to ensure your company is prepared to address upcoming religious accommodation requests to give your company the gift of a litigation-free year!

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