Many employers have zero tolerance for drug testing.  I served in the Army Reserve and Army National Guard for 25 years.  The US Army had a so-called zero tolerance policy for NCO’s and officers.  Any Non-Commissioned officer or commissioned officer caught doing drugs in a drug test would be automatically discharged.  If the offender was an enlisted man, he/she would be given the opportunity to perform drug counseling instead of discharge.  

I did not necessarily believe in the policy, but as a Commander, I always enforced it.  I knew that at some point, some otherwise reliable NCO or officer would test positive.  That was my concern.  If the officer or NCO was one of the good ones and they tested positive, the loss would be the Army’s.  I am not an expert on drug use, but my perception is that some folks use marijuana occasionally.  

Mike Maslanka notes how a coach for the Texas Rangers tested positive, and tendered his resignation.  But, the GM, Nolan Ryan, refused the resignation.  Mike, a management side lawyer, supports that refusal.  He criticizes zero tolerance policies.  He says these sorts of decisions need to be considered on a case-by-case basis.  Has the employ expressed true remorse, he asks?  Is he an otherwise good performer?  I agree.  A one time mistake, I believed when I was a Commander,  should not deprive the Army of a good NCO, just as true repentance should not cost an employer a good worker.  

A good friend recently tested positive for drug use for a construction company.  He had been there some 20 years.  We can chastise my friend for taking that sort of chance.  But, he was an otherwise very good performer for 20 years plus.  Now, the company is without one of its most experienced hands.  Is the company better off? 

I served in Iraq for 12 months.  I can guarantee that the Army needs all the good NCO’s and officers it can find.  There is no greater stress than war.  Good leaders are essential.  We cannot afford to lose any.  Neither can a good company afford to lose a good employee needlessly. 

 

 Part of the recently passed Patient Protection and Affordable Care Act contains an amendment to the Fair Labor Standards Act.  The amendment requires all employers to provide reasonable breaks and a location for women to express milk for their children.  The act supports women who breastfeed their children.  The location must be in a place other than the bathroom. 

 The national economy added 162,000 jobs in March, but the unemployment rate stayed the same at 9.7%.  That is the largest job gain in three years.  No small achievement for this battered financial picture.  See report.  Meanwhile Texas unemployment for February stayed the same at 8.2%.  San Antonio unemployment improved to 6.4% from the 7.7.  See TWC report.  

 Facebook is now the third largest country in the world.  That is, if each user of Facebook was a citizen of a country, then that country would be the third largest.  Facebook, Myspace, Linked, the list of social media web sites grows longer each year.  Blogging grows leaps and bounds every year.  Cases in which employers have tried to constrain what its employers write on these sites continues to grow.

Employers have some risk if they try to control what an employee writes.  If an employee posts information about his color, racial background, religion, disability, age or gender and those characteristics then lead to termination at work, the employee may have a right to pursue a discrimination claim.  

Some states, not Texas, have off-duty conduct laws.  Off-duty conduct laws provide that an employee may not be terminated for off-duty conduct that has no effect on the employer.  

An employee might write something online in opposition to discrimination in the workplace.  if the employer then takes some action against that employee, then any resulting adverse personnel action may constitute retaliation.  Retaliation for opposition to discriminatory practices is prohibited by Title VII of the Civil Rights Act of 1964, and all other civil rights statutes. 

If an employee complains online about "terms and conditions" of employment, then the employee is protected by the National Labor Relations Act.  The NLRA was designed to allow unions to form.  Typically unions start with complaints or discussions about workplace conditions.  To qualify, such discussions must be "concerted" and must be for the "mutual aid and protection" of more than one employee.  Concerted activity has always been protected.  But, now it is simply protected in the new online venue. 

That does not mean the employer cannot forbid employees from publicly disparaging their products or the products of competitors.  In one NLRB (National Labor Relations Board) filing, the union started a facebook page.  Sears objected to the extent that the website disparaged Sears products or the products of competitors.  The NLRB essentially agreed. 

 Halliburton/KBR has dropped its petition for certiorari to the US Supreme Court in the Jamie Leigh Jones case.  See report.    Ms. Jones is the lady who was raped in Iraq by KBR co-workers.  She retutrned to the US to find that she had sgned an arbitration agreement which would have prevented most of her case from going before a jury.  KBR has fought very hard to keep her case in arbitration.  The employer lost on appeal with the Fifth Circuit.  It looks like that decision will now become the final decision.   The Fifth Circuit found that rape was not related to her employment, and, therefore, not properly a part of an arbitration agreement.  Therefore, the rape allegations would go to trial. 

Ms. Jones was gang raped in Iraq and the locked up by company employees.  In withdrawing their petition for certiorari, KBR is effectively withdrawing its request for appeal.   The company was motivated in part by the Franken amendment which prohibits arbitration for companies that do business with the Department of Defense. 

 We love our email.  But, sometimes, email is our undoing.  Ronda Templeton talks about email and its travails in this San Antonio Express-News article.  Of course, she mentions how wise it is to think before you send any email.  Once sent, it is nearly impossible to bring back an email.

Every employee should also understand that if you use the employer’s email server for any email, personal or not personal, then the employer probably has the right to look at that email.  

Note her report that 95% of us check our work related email after hours.  Is that time compensable?  If checking email is required by the employer, then time spent doing so will very likely be compensable. 

 in  a recent decision, the Fifth Circuit found in favor of the plaintiff, actually overruling a judgment for the employer.  Even more surprising is that in its decision, the Fifth Circuit appears to be construing the available facts in favor of the non-movant, as they should be doing.  See Carmona v. Southwest Airlines.  

In this ADA case decided under the old ADA, the plaintiff claimed a condition known as psoriatic arthritis, which can be quite delibitating.  This particular plaintiff, for example,w as often reduced to crawling at times, because walking was far too painful.  

The court noted that the employer’s attorney omitted from a quotation a key clarification: "most of the time."  That is, the plaintiff testified that he could drive, walk, read, take care of himself.  When pressed further, he added,  "most of the time."   That is, he could walk, drive, read, take care of himself most of the time.  The defense attorney omitted the latter response, as many defense attorneys do.  But, this time, the employer’s attorney was called on this glaring omission.  As noted above, the defense attorney is supposed to construe the available facts in favor of the non-movant, or plaintiff, when seeking a judgment as matter of law.  All too often, they do just the opposite.  They usually construe the available facts in favor of the movant, or defendant.  So, the Fifth Circuit construed all the available information in favor of the non-movant and found there was enough evidence to allow a jury to hear the case. 

Judgment as a matter of law is a motion where one party claims the other party has no case.  The entire purpose of judgment as a matter of law is to dispense with cases that have no merit.  Why waste the jury’s time with obviously flawed cases?  But, when flaws are not obvious, then the jury should hear such cases.  This time, the Fifth Circuit agreed. 

 Every employee assumes or hopes he will not be fired.  But, if you get fired, you need to understand your COBRA (Consolidated Omnibus Budget Reconciliation Act of 1985) rights.  COBRA is the federal statute which requires an employer to make available to a terminated employee continued health insurance coverage.  The continued coverage comes at a price.  The employee must pay both the employer’s portion and the employee’s portion.  That means the cost will typically be twice or more what the employee was paying  before the termination.  

 In 2008, Congress enacted legislation subsidizing the costs of COBRA for workers who lost their job due to the Recession.  This legislation applies to persons who lost their jobs due to involuntary termination between Sep. 1, 2008 and Dec. 31, 2009.  See article at Workplace Fairness.  According to Workplace Fairness, the COBRA subsidy begins for health insurance coverage starting March 1, 2009.  

 Under the Americans with Disabilities Act, it is unlawful to inquire unreasonably into a person’s medical background.  Under the ADA prior to the 2009 amendments, a person whose disability was controlled by treatment was not considered disabled.  So, what happens when a person with controlled epilepsy is asked about his medications and then is rejected?  Well, in Harrison v. Benchmark Electronics Huntsville, Inc., the court found that the applicant was entitled to file suit even though, under the pre-amendment ADA, the person was not considered disabled.  

In this decision, the 11th Circuit joined several other circuits (not including the 5th) in finding a private right to sue.  The applicant was a temporray worker for the employer.  The employer frequently hired temp workers permanently.  The employer routinely asked for a drug test as part of the application procedure.  Mr. Harrison tested positive for barbituates, which he took for epilepsy.  The applicant explained the nature of his medication.  The company’s medical review officer confirmed the medical requirement of the medicine.  But, without explanation, the employer rejected Mr. Harrison’s application.  

Under the old ADA, the EEOC rejected Mr. Harrison’s charge, saying he was not disabled.  His epilepsy was controlled by medication.  The employee filed suit.  On appeal, the 11th Circuit Court of Appeals found that a private right to sue was available to persons who are not disabled due to improper medical inquiries.  As Law Professor points out, the utility of this finding may wane as we get further down the road from the 2009 amendments.  This ruling specifically applies to non-disabled persons.  So, the effect could be opposite.  Improper medical inquiries to persons without a disability, controlled or otherwise, may actually continue.  As Law Professor points out, the ruling would apply whenever a person is required to undergo a medical test not related to job skills that would not otherwise be required.