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Friday, September 28, 2018

The NEW Fair Credit Reporting Act (FCRA) Summary of Rights Form is Here!

If your company uses a third-party vendor to conduct background checks on prospective employees, there is a new model for the “A Summary of Your Rights Under the Fair Credit Reporting Act” notice.
Q: When should you start using it?
A: NOW. The Consumer Financial Protection Bureau (CFPB) is responsible for enforcing certain aspects of the FCRA, and published a new model notice titled “A Summary of Your Rights Under the Fair Credit Reporting Act” on September 21, 2018.
The Fair Credit Reporting Act (FCRA) establishes strict procedures that employers must follow when obtaining background check reports on applicants or employees (“consumers”) from a third party “consumer reporting agency.” The FCRA requires employers to provide written disclosures to and seek affirmative consent from applicants and employees before procuring these types of background check reports.
Q: What about employees who I intend not to hire?
A: The FCRA also imposes requirements on employers to provide notice to applicants and employees whom the employer intends to not hire, terminate, or demote based upon the results of a background check report. In complying with these notice requirements, employers are required to give applicants and employees a description of their rights under the FCRA. Many employers use the “Summary of Your Rights Under the FCRA” to comply with the FCRA and give “consumers” notice of their rights when a background check report is requested.
Q: When did Congress adopt the new procedure?
A: Earlier this year, Congress adopted legislation called the Economic Growth, Regulatory Relief, and Consumer Protection Act. This law requires nationwide consumer reporting agencies to provide “national security freezes” free of charge to consumers, which restricts prospective lenders from obtaining access to a consumer’s credit report, thereby making it harder for identity thieves to open accounts in the consumer’s name. The newly enacted law requires that whenever an applicant or employee is provided a summary of their rights under the FCRA, they must also be informed of the new right to a security freeze.
Q: When was the new FCRA Summary Form Released?
A: Earlier this month, the CFPB released a new model “A Summary of Your Rights Under the Fair Credit Reporting Act” notice, which incorporates information about consumers’ right to a security freeze. The new form can be found at Since this new form went into effect on September 21, 2018, employers should begin utilizing the new form immediately.
Follow this link to access the new FCRA Summary of Rights form!
Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL can be contacted at or 334-246-2901. Link to full case at

Friday, September 21, 2018

Injured New Jersey Worker’s Refusal to Submit to Medical Marijuana Drug Testing Not Protected

Daniel Cotto worked as a forklift operator at Ardagh Glass in Bridgeton, N.J.  On November 1, 2016, Cotto hit his head on the roof of a forklift at work while clearly working in a safety sensitive position, according to a recent New Jersey federal court order.  Cotto was sent to an Orthopedics clinic for a medical examination, where the doctor placed him on light duty work. The Ardagh Glass Safety Department asked Cotto to submit to a breathalyzer and urine test in order to return to work.  Cotto explained that he was taking prescription medications, including medical marijuana under the New Jersey Compassionate Use of Medical Marijuana Act (“CUMMA”).  He was also taking prescription Percocet and advised the company that he could not pass any urine or drug test.

Cotto claimed that he revealed his prescription medications to the company when he was hired, and that his doctor had given him a note stating he could operate machinery while using these drugs.  Ardagh Glass advised Cotto that it was not concerned about his use of Percocet but was concerned about his use of marijuana.

Cotto was not fired but he was placed on an indefinite leave.  He was not permitted to return to work until he could pass a drug test.  Cotto’s doctor wrote that Cotto had lifting restrictions because of medical conditions, but Cotto maintained that he could perform the essential functions of the job.  He sought a “reasonable accommodation,” specifically asking that the Ardagh Glass waive any requirement that he pass a drug test for marijuana.

Eventually Cotto filed suit in Superior Court of New Jersey, Cumberland County, asserting claims of disability discrimination, the "perception of disability discrimination," a failure to accommodate, retaliation, and a request for equitable relief including costs and reinstatement. Ardagh Glass then removed the case by invoking the Federal Court's diversity jurisdiction under 28 U.S.C. § 1332, and moved to dismiss the complaint in its entirety because CUMMA does not mandate an employer waiver of a drug test.

While the federal court agreed that Cotto plead enough to satisfy coverage under the New Jersey Law Against Discrimination, for his back and neck pain, and he appeared to be qualified to perform the essential functions of the job, Cotto could not show that he could operate machinery while using marijuana. 

The Court next noted that while CUMMA provides an affirmative defense to New Jersey patients who are properly registered under the statute and subsequently arrested and charged with possession of marijuana, decriminalization of medical marijuana does not shield New Jersey employees from adverse employment actions. These are the thirteen states with Medical Marijuana Cardholder Protection laws: Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Massachusetts, Michigan, Minnesota, Nevada, New York, Oklahoma, Pennsylvania, and Rhode Island. 

Cotto’s discrimination claim turned entirely on the question of whether he could compel Ardagh Glass to waive its requirement that he pass a drug test for marijuana.  On that issue the Federal Judge ruled: “It is plain that CUMMA does not require Ardagh Glass to do so.  We therefore find that Plaintiff has failed to show that he could perform the ‘essential functions’ of the job he seeks to perform.  Ardagh Glass is within its rights to refuse to waive a drug test for federally-prohibited narcotics.”

The case is Cotto v. Ardagh GlassPacking, Inc., No. 18-1037 (D.N.J. August 10, 2018), and is the first decision in New Jersey on the issue of employer reasonable accommodations and CUMMA.

Common Sense Counsel: knowing the state drug testing laws, and having the correct policy language is absolutely critical to winning these cases.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL can be contacted at or 334-246-2901. Link to full case at

Wednesday, September 12, 2018

New FMLA Forms from the DOL are Here!

The Department of Labor (DOL) have been working away posting new model FMLA notices and medical certification forms.
Expiration: August 31, 2021.

No more month-to-month extensions. Rest easy through summer 2021. There’s nothing new, other than the new expiration date. Nevertheless, use these templates moving forward. For easy reference, here are the links to the new FMLA notices and forms on my blog site at


Certification forms
The notices/forms also can be accessed from this DOL web page.

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Common Sense Counsel: 9 Ways to Stop FMLA Abuse:

  1. Notice: Always insist employees provide the required notice once they learn of the need for leave, and coordinate with supervisors that such leave be designated as FMLA leave to make sure that employees start burning their FMLA allotment – nothing goes uncounted.
  2. Dock their pay: FMLA leave is always unpaid, and even for exempt employees, you can make deductions from their wages for a few hours’ intermittent leave without automatically converting them to overtime-eligible non-exempt employees.
  3. Ensure eligibility: Make sure employees requesting such leave are eligible to take it. They must be within 75 miles of a worksite with at least 50 employees.
  4. Don’t give it prematurely: Make sure employees have gained at least a year’s seniority with your company, and that they have worked at least 1,250 hours during the previous 12 months. If not, they’re not eligible and requests can be denied.
  5. Require medical certification: Leave must be medically necessary. You can insist on medical certifications, and annual recertifications if needed, and ask about specific reasons for leave, its duration and dates of treatment, both from the healthcare provider and the employee. Attach a job description to the medical certification form. 
  6. Transfers: You can transfer employees to other work if intermittent leave is too disruptive in their normal positions.
  7. Count overtime: You can count overtime missed in calculating the total 12-week allotment.
  8. Count the holidays: You can count any holidays falling within any leave taken toward employees’ total 12-week FMLA allotment, to make sure they reach the limit sooner, and
  9. Make ’em use paid time first: You can compel the use of paid leave first, so employees have to burn vacation before any unpaid FMLA leave.
Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at or 334-246-2901.

Friday, September 7, 2018

Getting FLSA Wrong Can Be Costly

Forty-Four employees of HMR of Alabama, Inc. worked for HMR located in Alexander City, Alabama, comprised of thirty-three certified nursing assistants or “CNAs”; three are licensed practical nurses or “LPNs”; and eight hold dual positions, such as “CNA/Concierge” and “Driver/Driver Coordinator.” In August 2016 they filed a joint complaint in Federal Court making claims for overtime wages under the Fair Labor Standards Act (FLSA), 29 U.S.C.§ 201, claiming that they had worked without compensation during their meal breaks for the past six years (2,089 weeks total).

HMR Veterans Services, Inc. has been serving Veterans in State Veterans Homes for nearly two decades with homes it manages for the state veterans’ administrations in the four states of Alabama, Texas, South Carolina and Maryland, based upon its website. They claim to be the gold standard of partnering with state veteran home services.

The employees claimed that they routinely worked more than 40 hours per week without full compensation because HMR deducted meal breaks from their pay even when they were not “completely relieved from duty.” They state that during meal breaks they were required to “care for patient needs” and “tend to patients,” and they provide each employee’s specific job title and list the weeks each employee claims to have worked more than 40 hours. Compensable work under the FLSA includes any activity that is a “principal activity” or “integral and indispensable to the principal activities that an employee is employed to perform.” A detailed description of the exact acts each plaintiff performed during meal times is not required to pursue an FLSA claim.

On Thursday the 11th Circuit Court of Appeals in Atlanta Ordered that their case be sent back for trial and that the employees need not give a detailed description of their lunch time activities to pursue an FLSA claim.  The Court Order showed three well know Alabama law firms representing the employees. Attorney fees are routinely awarded under the FLSA and can be substantial. 

Common Sense Counsel: There are several FLSA Compensable Time Issues That Can Trip You Up Big Time! The FLSA clearly defines what qualifies as compensable time. Do the following count?

-          Waiting time
-          On-call time
-          Rest and meal periods
-          Sleeping time
-          Lectures
-          Meetings and training programs
-          Travel time
-          Meal time
-          After hour emails/text messages

Problems occur when employers fail to have legally defensible handbook policies, employee sign-offs and notices, and supervisors trained to recognize and count certain hours worked as compensable time. Getting it wrong can be costly.

Click here to access the full 44 employees v HMR docket.

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