As part of its stepped-up enforcement process, the EEOC has recently filed a lawsuit under the ADA stemming from an employer’s administration of an alcohol test to an employee. http://www.eeoc.gov/eeoc/newsroom/release/10-5-10.cfm .Challenging the practice of U.S. Steel to administer random breath analysis tests to probationary employees, the EEOC takes the position that such tests run afoul of the Americans with Disabilities Act. Consistent with prior EEOC guidance materials (http://www.eeoc.gov/policy/docs/medfin5.pdf), the Commission takes the position that alcohol tests are medical tests and are therefore limited by the ADA. The facts of the U.S. Steel case appear somewhat tilted against the employer in that the employee allegedly had a medical condition that caused a false positive test result – a fact borne out by a confirmatory blood alcohol test. Given that the ADA does not protect employees under the current influence of drugs or alcohol, the policy issues involved in this debate may prove interesting.
Litigation under the FLSA continues to spread like a cold in a daycare. To further add to our concerns, Congress is entertaining yet another way for employers to find themselves in trouble for wage-hour violations. While the penalties under the FLSA for the misclassification of an employee as an independent contractor can quickly become expensive with backpay, liquidated damages and attorneys’ fees, the proposed “Employee Misclassification Prevention Act (EMPA) may add further salt to the wound. In its present form, EMPA would impose penalties of $1,100 for an initial misclassification, and take that penalty to $5,000 for persistent or willful violators. These penalties are on top of those allowed under the FLSA for any unpaid overtime. EMPA also proposes to add further civil penalties for recordkeeping violations and create a presumption that an employer’s inadequate records the finding of an employment relationship rather than independent contractor status.
Really? Because now what he posted on Facebook is all over the internet, the newspaper, the radio, and (allegedly) customers’ windshields. What we’re talking about are racially derogatory Facebook musings by a youth football coach in metro Atlanta. Those postings threaten not only his position with a popular football association, but also those of the association’s other board members. This should serve as another reminder that the things folks say on social media sites can have a significant impact on their employer’s business and should be addressed through a customized company policy. An employer certainly can’t stop this type of thing from happening, but it can put its employees on notice that it will not be tolerated.
With the NLRB recently issuing a complaint, http://www.nlrb.gov/shared_files/Press%20Releases/2010/R-2794.pdf, against a Connecticut employer for terminating an employee for posting comments on Facebook (or maybe its because a lot of HR Departments have been watching ”The Social Network,” http://www.thesocialnetwork-movie.com), many employers have been asking whether they need a social media policy or whether they need to change existing policies. (Of course, some employers are still asking, “What is social media?” and “Doesn’t ‘twittering’ violate our sexual harassment policy?”)
When I did my goodbye post, I didn’t have my new email address or phone number. They are: email@example.com and 423/424-2007. Hope everyone is doing well. I wish all of you an early happy holiday season.
The National Labor Relations Board (“NLRB”) issued an opinion on December 6, 2010, holding that an employer did not violate Section 8(a)(2) and (1) of the National Labor Relations Act (i.e., rendering unlawful support to a labor organization) by entering into and maintaining a Letter of Agreement that set forth: (1) ground rules for union organizing; (2) procedures for voluntary recognition upon proof of majority support; and (3) substantive issues that collective bargaining would address if and when the employer recognized the union at the unorganized facility. While this decision is not surprising, it is still big news (at least in in the labor law world).
You know how you go to your favorite blog, and your regular blogger isn’t there. You ask, ”Where’s John?” “John no longer blogs here, I’m Steve.” And you’re thinking, “Hey, who’s this idiot? I like John.” But you still want your blog fix. And even though Steve doesn’t write his blog the same way you’re used to — like John — you still have the blog marked as a favorite, and you don’t want to have to go to a different blog. And even Steve feels kinda bad, because John trained him. John showed him how to use WordPress, where to find good links, who provides good reader comments — who doesn’t. Well, we’re Steve. What can we get ya?
I’ve borrowed Garrison Keillor’s sign-off from his Writer’s Almanac as a way of bidding farewell for a while. It’s hard to imagine life without blogging, but I’ll just have to get used to it. I’ve been asked to become General Counsel and Vice President of Human Resources of the newly created CraftWorks Restaurants and Breweries, Inc.
According to the author of this article, as employers cut perks that cost money, they’re looking for new perks that don’t cost money. Some employers are now allowing employees to bring their pets to work. There can be problems with such a perk, but a stressed employee will have a friend with him or her everyday to help alleviate the stress. If this becomes a significant trend, employers may decide to further cut costs by replacing employees with animals. And that’s when the Animal Employment Protection Act comes into play.
For the past two years, I’ve had a post commemorating Veterans Day. In 2008, the post gave a history of Veterans Day. In 2009, I wrote of Veterans Day in conjunction with the tragedy at Fort Hood. This year, I’m a day late because of a bit too much travel this week. It’s important every year for all of us — employers, employees, citizens — to remember the fallen and all veterans on this day.