WIRTW #334 (the “these go to 11” edition)

Today is my 11th anniversary. I love my wife. That is all.

Here’s the rest of what I read this week:

Discrimination

• Gee Whiz! Sexual Harassment Claims Abound at Archie Comics – By Both Males and Females! — via Employment Discrimination Report
• 5th Circuit Weighs In On Religious Discrimination — via Michael Fox’s Jottings By An Employer’s Lawyer
• Understanding Gender-Identity Discrimination — via Molly DiBianca’s Delaware Employment Law Blog
• Is AGE the hidden area of discrimination? — via Mike Haberman’s Omega HR Solutions
• Why the majority and dissenting opinion in the Ninth Circuit case of Weaving v. City of Hillsboro both got it wrong — via Understanding the Americans with Disabilities Act (ADA)
• NYC: “‘Ban the Box’ bill worries businesses” — via Walter Olson’s Overlawyered
• Sexy ADA issue: Bad breakup may not justify employer-mandated medical exam — via Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• Looking back on Zubulake, 10 years later — via Electronic Discovery Law
• How NOT to Produce Facebook Evidence — via Next Blog
• Dinging distracted drivers — via Technology for HR
• Delaware Adopts Model Law Allowing Social Media Accounts to be Inherited — via Ride The Lightning

HR & Employee Relations

• A Cold Shower for Workplace Ice Bucket Challenges? — via Dan Schwartz’s Connecticut Employment Law Blog
• My Boss Talks About Killing People — via Evil Skippy at Work
• Telecommuting not as prevalent as you might think — via Business Management Daily
• How Family Support For Dads Also Helps Working Moms, Kids and Employers — via Fathers, Work and Family
• Don’t Treat Work-Life Balance as a Zero-Sum Game — via Lifehacker
• Common Mistakes that Derail Enforcement of a Noncompete Agreement — via Michigan Employment Law Advisor

Wage & Hour

• Under the FLSA, a Day Late is a Dollar Short — via Wage & Hour Insights
• How Do Wage and Hour Laws Apply to Telecommuting? — via Overtime Lawyer Blog
• Showdown With Showtime: Never Ask Professionals to Work for Free — via Evil HR Lady, Suzanne Lucas
• The Growing Use of Statistical Analysis In FLSA Overtime/Misclassification Lawsuits — via Wage & Hour - Development & Highlights
• Can an Employer Persuade an Employee to Work Instead of Taking FMLA Leave Because Her Job is Really Important? — via Jeff Nowak’s FMLA Insights
• Here’s why you provide a list of essential job functions when approving FMLA — via Eric Meyer’s The Employer Handbook Blog
• 7th Circuit Rules Plaintiff Does Not Need Expert Testimony to Show Incapacitation in FMLA Claim — via Wisconsin Employment & Labor Law Blog
• 3d Cir. on FMLA Right to Return to Work — via Phil Miles’s Lawffice Space

Labor Relations

• Handbooks are Still Being Overly-Scrutinized by the NLRB — via Matt Austin Labor Law
• Harassment Investigations: New NLRB Decision Complicates Them Even More — via WinWinHR
• Cry “Solidarity” and Let Loose the NLRB: A Significant Expansion of the NLRA’s Protections — via Vorys on Labor

 

What does the ADA have to say about employer inquires about prescription drugs

Employers with employees working in safety-sensitive positions have an obligation to ensure that their employees are not impaired while engaged in their jobs. For example, earlier this week I discussed Blazek v. City of Lakewood, in which the 6th Circuit concluded that the ADA does not protect a drunk snowplow driver. We also know that the ADA does not protect employees under the influence of illegal drugs.

What about legally prescribed drugs? As an employer, can you test employees for prescription medications packaged with warnings about operating heavy equipment. And, if an employee tests positive, can you require those employees to disclose those medications to the third-party company hired to administer the tests. Surprisingly, the ADA is silent on these issues.

In Bates v. Dura Automotive Sys. (8/26/14) [pdf], the 6th Circuit attempted to give us some answers.

1. Does the ADA permit an employer to test for prescription medications?

Whether the ADA permits an employer to test employees for prescription medications will hinge on whether the test is a “medical examination.” If the test is a “medical examination,” then the ADA only permits it during employment if the test is “job-related and consistent with business necessity.” According to the Court, whether the prescription-drug screen is a “medical examination” will hinge on whether the test “is designed to reveal an impairment or physical or mental health,” which examines both the employer’s reasons in using the test and the test’s typical uses and purposes.

The Court concluded that this issue presented a close enough call for a jury to decide:

Dura denies using its drug-testing protocol to reveal impairments or health conditions…. Far from a “free peek into a[n] … employee’s medical history,” … the evidence shows that Dura abstained from asking plaintiffs about their medical conditions…. The urine test itself revealed only the presence of chemicals—amphetamines, barbiturates, benzodiazepines, cocaine, ecstasy, marijuana, methadone, methamphetamine, opiates, oxycodone, phencyclidine, and propoxyphene. No one suggests that the consumption of prescription medications containing these chemicals constitutes protected medical information (or even an “impairment”) under the EEOC definition of medical examination….

Although some prescription medications may reveal more than meets the eye because of brand-name recognition and ubiquitous marketing campaigns, an employer might struggle to discern medical conditions from the prescription drugs discovered here, which included a number of prescription pain relievers. Arguably, this attenuated testing protocol—with a narrow focus on substances containing machine-operation restrictions, as opposed to all prescription drugs—reflects Dura’s effort to avoid obtaining information about employees’ medical conditions and to avoid discriminating against all employees who take prescription drugs.

Still, much depends on Dura’s credibility. Inconsistencies between Dura’s written and actual drug-testing policies and its disparate treatment of individual employees may evince a pernicious motive. For instance, one plaintiff (Bates) claims that Dura asked her directly about her prescription medications and fired her for reporting them, and Dura allowed another plaintiff (Long) to return to work despite testing positive. If credited, a jury could reject Dura’s explanation as a pretext for screening out potentially disabled employees. Moreover, plaintiffs-appellees may present evidence that the disclosure of machine-restricted medications typically reveals confidential health information, such that the jury could determine that the test targets information about an employee’s physical or mental health, regardless of Dura’s intent.

2. Does the ADA permit an employer to require employees, after a positive test, to disclose medications to a third-party administrator?

The 6th Circuit concluded that there exists a huge difference between a general requirement that employees disclose a list of all prescription medications taken (possibly illegal), versus a policy that only requires the disclosure of machine-restricted medications after a positive test. Given the fact-based nature of this inquiry, the court concluded that a jury should decide this question, too.

Dura denies asking employees about their general prescription-drug usage. Viewing the evidence in its favor, Dura’s third-party-administered test revealing only machine-restricted medications differs from directly asking employees about prescription-drug usage or monitoring the same…. A drug test that requires positive-testing employees to disclose medications to a third party, who then relays only machine-restricted medications to the employer, need not reveal information about a disability….

A jury could reasonably conclude that Dura implemented a drug-testing policy in a manner designed to avoid gathering information about employees’ disabilities.

How can an employer make sense of this discussion? These are difficult issues that balance an employer’s right to maintain a safe workplace against an employee’s right to medical privacy. What is an employer to do?

1. Limit testing for the use of prescription drugs to safety-sensitive positions and only those medications that could pose a safety risk.

2. Be consistent in your treatment of employees who test positive.

3. Only disclose the results to those who need to know.

4. Do not ask employees to disclose the underlying medical condition for which they are taking the medication.

These steps will help limit your risk in the event an employee challenges your testing or the use of the results.

”Ritalin-SR-20mg-full” by en:User:Sponge - Created by en:User:Sponge. Transferred from en.wikipedia. Licensed under CC BY-SA 3.0 via Wikimedia Commons.

Hear what I had to say on @WCPN about #BanTheBox

Yesterday, WCPN’s The Sound of Ideas was kind enough to invite me to speak about criminal background checks in employment and the “Ban the Box” movement.

Did you miss the live broadcast? 1) shame on you; and 2) today’s your lucky day because WCPN archives all of its broadcasts on its website.

Here you go.

Thanks Mike McIntyre for having me on. Let’s do it again soon.

Facebook firing causes unfair labor practice double play for NLRB

In Triple Play Sports Bar & Grille [pdf], the NLRB unanimously concluded that an employer unlawfully fired two employees for their off-duty Facebooking, and less-than unanimously concluded that the same employer’s social media policy was unlawfully restrictive.

A former Triple Play employee, Jamie LaFrance, posted the following on her Facebook page:

Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money … Wtf!!!!

Two then-current employees, Spinella and Sanzone, interacted with that post. Spinella clicked the “Like” button under the comment. In response to another’s comment to the same post, Sanzone commented, “I owe too. Such an asshole.”

The Board concluded that Triple Play unlawfully fired Spinella and Sanzone for their Facebook activities:

Spinella’s and Sanzone’s comments were not “so disloyal … as to lose the Act’s protection.” … The comments at issue did not even mention the Respondent’s products or services, much less disparage them. Where, as here, the purpose of employee communications is to seek and provide mutual support looking toward group action to encourage the employer to address problems in terms or conditions of employment, not to disparage its product or services or undermine its reputation, the communications are protected.

The NLRB then examined the employer’s Internet/Blogging Policy, which stated:

The Company supports the free exchange of information and supports camaraderie among its employees. However, when internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extend to employees revealing confidential and proprietary information about the Company, or engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment. Please keep in mind that if you communicate regarding any aspect of the Company, you must include a disclaimer that the views you share are yours, and not necessarily the views of the Company. In the event state or federal law precludes this policy, then it is of no force or effect.

The Board concluded that a vagueness and lack of specificity doomed the policy:

Here, we believe that employees would reasonably interpret the Respondent’s rule as proscribing any discussions about their terms and conditions of employment deemed “inappropriate” by the Respondent. The rule contains only one other prohibition—against revealing confidential information—and provides no illustrative examples to employees of what the Respondent considers to be inappropriate. Under these circumstances, we find the term “inappropriate” to be “sufficiently imprecise” that employees would reasonably understand it to encompass “discussions and interactions protected by Section 7.” …

The two unlawful discharges served as an indication to employees that the clause did not shield Sanzone’s and Spinella’s protected activity. Faced with these discharges, employees therefore would reasonably construe the Internet/Blogging policy to prohibit Section 7 activity such as the Facebook discussion of tax withholding issues involved in this case.

What can employers learn from this decision:

1. Even the simple act of clicking the “Like” button can be enough to constitute protected concerted activity.

2. The line beyond which an employee must cross to cost themselves the protections of the NLRA is far down the path of online speech.

3. For any social media policy to pass muster under the NLRA, you should provide specific examples of the prohibited speech. Generalizations will likely cause you problems with the NLRB.

4. The surest way to end up the NLRB’s crosshairs for an unlawful social media policy is to fire an employee for a violation of that policy. Absent a termination, it is unlikely the Board will ever find out about your policy.

Listen to me on WCPN tomorrow morning (8/26) from 9–10, discussing “Ban the Box”

If you’re near a radio tomorrow morning from 9 – 10, tune to 90.3 FM, WCPN, to hear me on The Sound of Ideas.

The topic of the day is “Ban the Box,” the disturbing legislative trend that prohibits employers from asking job applicants about criminal conviction histories on job applications. Given that we have an hour to fill, I imagine the discussion will also more broadly cover employment background searches in general.

If you miss the show live, I’ll have links for everyone to stream it at your leisure. You can also watch live on your computer here.

This is my second appearance on The Sound of Ideas, and I’m grateful to the show for having me back.