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Monday, January 21, 2019

Top 7 Human Resource Resolutions for Alabama Employers in 2019

1. Prepare now for new “White Collar Exemptions” Under the FLSA

In March the U.S. Department of Labor (DOL) is scheduled to release for comment a new proposed rule for "Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees" under the Fair Labor Standards Act (FLSA). The current annual threshold will likely increase from $23,660 to approximately $30,000 (as opposed to the $47,476 threshold proposed in 2016). Prepare to repeat the 2016 job description exercise, but not as painful. 

2. Research if your Company a Potential Joint Employer

The DOL is considering a new proposed rule, that could change the test for determining whether an entity is a joint employer. The proposed DOL changes to its regulations concerning joint employment under the FLSA are intended to update and clarify the 60-year-old legislation.

3. Update Policies Related to Harassment and Discrimination

In the age of #MeToo, some companies still don't understand the importance of having air tight harassment policies and a written systemic process to investigate allegations. Scheduling employee and management training, providing all employees a legally compliant signed policy, and dual reporting channels to make a report, are all critical. Then know how to conduct an attorney-client privileged legally defensible workplace investigations of allegations. The goal is to provide the employer an affirmative defense. Expect new EEOC Harassment guidelines to be released shortly. 

4. Employee Health Insurance and Wellness Choices will Continue Evolving

The U.S. District Court for the Northern District of Texas on Dec. 14, 2018 declared the individual Affordable Care Act (ACA) mandate to be unconstitutional. So, the future of the ACA is uncertain. Employers should begin to look now at new plan options. The EEOC announced that it will likely propose new Wellness regulations in June 2019, after the last were overruled effective January 1, 2019. Also look for the highly anticipated final Health Reimbursement Account (HRA) Regulations to be released in early 2019.

5. Update/Adopt Employee Arbitration Agreements

Employers with employee arbitration agreements may wish to adjust their agreements as needed to boost enforceability. Others may wish to adopt them. The Supreme Court has given arbitration agreements a full green light of enforceability.

6. Update Noncompete/Confidentiality Agreements

Many Alabama Employers have not yet updated their agreements to bring them into compliance with the Federal Defend Trade Secrets Act, the 2016 Alabama Non-Compete Act or the Alabama Trades Secrets Act; all of which provide forward thinking employers multiple remedies against data thieving employees.  

7. Update FMLA Policies, Forms & Procedures

On Aug. 28, 2018, the DOL released new opinion letters on the use of Family and Medical Leave Act leave time and the applicability of “no-fault” attendance policies or attendance policies with point systems as they are applied to the FMLA. Employers should consider reviewing their FMLA policies in light of these opinion letters and the increasing abuse of intermittent FMLA leave. In September 2018 the DOL released updated FMLA forms and certification notices, which employers should be using now. The forms are available at

In 2019 resolve to be alert to these 7 issues and prepare to make the necessary changes to your policies and procedures. And Have a Blessed 2019!

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

Friday, January 18, 2019

EEOC & DOJ Tag Teaming Employers on Harassment – Especially State and Local Governments

On December 21, 2018, the EEOC (Equal Employment Opportunity Commission) and DOJ (U.S. Department of Justice) exchanged Christmas gifts early. The EEOC is now in a renewed partnership with the DOJ allowing for quicker referral action on harassment allegations against state and local government employers, putting those public employers more squarely in the EEOC's crosshairs and signaling to private businesses that harassment will remain a top enforcement priority.

Under the Memorandum of Understanding, or MOU, these the agencies will share information and enables them to better coordinate their activities when charges alleging Title VII violations are brought against public employers at the state and local level. This enhanced coordination will allow the agencies to move more briskly in instances where the EEOC finds in the initial phases of its investigation that immediate action is needed to protect workers. In those cases, the EEOC will give the DOJ the information it needs to seek an injunction from a federal judge while a charge is still being investigated.

This is an outgrowth of the commission's sharpening focus on #MeToo legal issues under Title VII, the EEOC and DOJ split enforcement authority for Title VII claims levied against state and local employers. The EEOC has touted the partnership as a way to "ensure the efficient use of resources and a consistent enforcement strategy" against state and local government employers. "Harassment at work can have a devastating impact on people," Chairman Victoria Lipnic said in her statement. "The employees in the public sector deserve as much of our attention on this issue as those in the private sector." Like when an employee is fired while an investigation into their allegation is pending, you can expect that the DOJ will vigorously insert itself in those instances to assist the EEOC in obtaining temporary restraining orders or injunctive relief during the investigation phase of a case. 

Common Sense Counsel: In light of the MOU take the following proactive steps: 1) state and local government employers should think proactively about nipping discrimination and harassment in the bud before it occurs, as well as systemic ways to defend against charges when they are filed; 2) Make sure your existing policies are in tune with relevant anti-discrimination and anti-harassment laws, and the 2018 EEOC Harassment Guidance ; 3) Train managers and HR staff on those policies and make sure workers know both that the policies exist and what the internal procedures are if they want to pursue an allegation; 4) Actually deal with issues internally when they arise and to properly investigate them and make sure that appropriate measured action is taken; 5) To the extent that those protocols and policies need to be more robust and in writing, or training is needed, now is a really good time to turn attention to those issues; 6) In the EEOC 75 page harassment report the agency took a deep dive into the issue of workplace harassment and offered employers a series of practical recommendations for curtailing it – better read it now or you will see it in the TRO petition; and 7) realize if you are not handling these kinds of matters appropriately, the EEOC and DOJ will have you on their radar locked and loaded to fire in federal court!

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL and can be contacted at or 205-222-8030. Blog at with links.

Friday, January 4, 2019

How People are Dying at Work

The U.S. Bureau of Labor Statistics reported on December 18, 2018: a total of 5,147 fatal work injuries were recorded in the United States in 2017. Fatal falls as the cause of death were at their highest level in the 26-year history of the Census of Fatal Occupational Injuries, accounting for 887 (17%) of worker deaths, up over 30% since 2011. This coincides with the Marijuana Greening of America which also produced a crop of safety-sensitive impaired workers. Transportation incidents remained the most frequent fatal event in 2017 with 2,077 (40%) occupational fatalities.

Unintentional overdoses due to non-medical use of drugs or alcohol while at work increased 25% to 272 in 2017. This was the fifth consecutive year in which unintentional workplace drug overdose deaths have increased, and increased by 120% from 2011 to 2017. This appears to be directly linked to the ever-increasing consequences of an opioid addicted America. Other trends show that certain employer safety guards and safety programs are having a major impact:

  • Contact with objects and equipment incidents were down 9% (695 in 2017 from 761 in 2016) 
  • Fatalities caused by being caught in running equipment or machinery were down 26% (76 in 2017 from 103 in 2016)
  • Crane-related workplace fatalities fell to their lowest level ever recorded, 33 deaths in 2017
The transportation and material moving occupational group, and the construction and extraction occupational group accounted for 47% of worker deaths in 2017. Within the occupational subgroup of driver/sales workers and truck drivers, heavy and tractor-trailer truck drivers had the largest number of fatal occupational injuries with 840. This represented the highest value for heavy and tractor-trailer truck drivers since the occupational series began in 2003. Fishers and related fishing workers and logging workers had the highest published rates of fatal injury in 2017.

  • Grounds maintenance workers (including first-line supervisors) incurred 244 fatalities in 2017. This was the second-highest total since 2003. Of these numbers, a total of 36 deaths were due to falls from trees, and another 35 were due to being struck by a falling tree or branch.
  • There were 258 fatalities among farmers, ranchers, and other agricultural managers in 2017. Approximately 63% of these farmers were age 65 and over (162) with 48 being age 80 or over. Of the 258 deaths, 103 involved a farm tractor.
  • Police and sheriff’s patrol officers incurred 95 fatal occupational injuries in 2017, fewer than the 108 fatalities in 2016.
  • The Top 5 states where employees died during 2017 while at work were: Texas (534), California (376), New York (313), Florida (299) and North Carolina (183). In 2017 in Alabama 83 employees died at work, down from 100 in 2016.

Common Sense Counsel: The type of work you do, the State you work in, your employer’s commitment to safety, whether you are impaired at work on Marijuana, Opioids or any other legal or illegal substance, all can cause a fatally bad day. Time for employers to ramp up their drug free workplace programs, get OSHA safety training completed, double check all your safety equipment/guards and get your safety incentives ready to encourage safer behavior. Remember, be safe and send them home Alive!

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