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Friday, August 26, 2016

OSHA Colors in Post-Accident Drug Testing Expectations


By: Thomas Eden

The Occupational Safety and Health Administration (OSHA) on August 19 filed its memorandum brief in opposition to attempts by several groups of builders who wish an enjoin OSHA’s new post-accident drug testing reporting rule. They claim that the OSHA measure is an overreach of the agency's authority. OSHA's new enforcement mechanism under §1904.35(b)(1)(iv) prohibits employers from retaliating against employees who report accidents with OSHA’s stated goal that work related accidents may be more accurately reported. OSHA’s preamble to the new rule takes the position that blanket post-accident testing would be found to be retaliatory and a violation. The case is Texo ABC/AGC Inc. et al. v.Perez et al., in the U.S. District Court for the Northern District of Texas.

OSHA’s brief makes a strong case that its preamble statements about post-accident drug testing does not rise to a “rule” which may not be enjoined, that the regulation only concerns accurate reporting within its Congressional mandate and the Plaintiff’s petition is “meritless.” But more revealing to employers and drug testing professionals should be OSHA’s top 10 quotes contained in its brief where the Agency colors in the lines for employers who wish to continue post-accident drug testing and avoid a citation after November 1, 2016. Read OSHA’s quotes and you be the judge:

1. “the Rule requires employers to “establish a reasonable procedure for employees to report work- related injuries and illnesses promptly and accurately,” and provides that “[a] procedure is not reasonable if it would deter or discourage a reasonable employee from accurate reporting” (Page 5)

2. “the preamble acknowledges that OSHA will have to proceed case by case; that certain events are to be evaluated on a case-by-case basis; enforcing the Rule to apply those principles in the case-by-case manner envisioned by the preamble” (Pages 16 & 18)

3. “carefully evaluate the effect of particular incentive programs and drug-testing policies,

4. “employer may “defend by showing that it possessed a legitimate, non-discriminatory reason for taking the adverse actions”. (Page 16 fn)

5. “the preamble does not lay out any categorical rules to determine when drug use “is likely to have contributed” to an injury, or what kind of drug testing is “designed in a way that may be perceived as punitive or embarrassing.” (page 18)

6. “Model Plan for a Comprehensive Drug-Free Workplace Program, at 3. The Drug-Free Workplace Advisor website similarly encouraged employers “to establish objective criteria that will trigger a post-accident test.” Ex. 1, at 4 (terminated in 2010). These statements are consistent with the preamble and inconsistent with the blanket post-injury drug testing Plaintiffs appear to advocate.” (Page 22 fn 19)

7. “the Rule permits any drug tests that are authorized or mandated by state or federal law.” Page 22 fn 20)

8. “Wherever the Rule conflicts with a workers’ compensation law, the compensation law controls; Rule must comply with Section 4(b)(4), and so cannot be applied to “supersede” or “affect” worker’s compensation laws. 29 U.S.C. § 653(b)(4). That statement necessarily refers to all of Section 4(b)(4), including its language that the OSH Act does not “enlarge or diminish” the “rights, duties, or liabilities of employers and employees.” Id. Thus, if a state workers’ compensation law provides an employer the “right[]” to conduct a certain drug test, the Rule does not say otherwise.” (Page 23)

9. “This is a fact-specific inquiry that will need to be resolved on a case-by-case basis. (Page 33 fn 30)

10. “preamble simply encourages employers to use testing that can “contribut[e] to the employer’s understanding of why the injury occurred.” (Page 33 fn 31)

11. “preamble simply encourages employers to use testing that can “contribut[e] to the employer’s understanding of why the injury occurred.” (Page 33 fn 31)

Common Sense Counsel: To learn the 6 Common Sense Steps to Eliminate Employer Confusion over this issue and continue post-accident drug testing after November 1, 2016, attend the local SHRM Chapter breakfast briefing on this topic on September 2. To Register:   https://www.eventbrite.com/e/dont-panic-post-accident-drug-test-tickets-27098967742 


Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com




















Friday, August 19, 2016

Marijuana Remains an Illegal Drug


By: Thomas Eden

On August 11, 2016, the U.S. Drug Enforcement Administration (DEA) denied two petitions to reschedule marijuana under the Controlled Substances Act. In addition, it announced a policy change to foster research by expanding the number of DEA-registered marijuana manufacturers (currently only the University of Mississippi is registered), and issued a statement of principles concerning industrial hemp.

Acting DEA Administrator Rosenberg stated that marijuana will remain a Schedule I drug because the research does not yet support a reclassification. More specifically, the DEA found that the current medical and scientific evidence demonstrates that marijuana has no currently accepted medical use in treatment in the United States. He stressed that the DEA supports legitimate medical and scientific research concerning the use of marijuana and will continue to do so and “if the scientific understanding about marijuana changes – and it could change – then the decision could change.”

DEA and USDA Issue Joint Statement of Principles on Industrial Hemp helpful in Alabama

The U.S. Department of Agriculture, in consultation with the DEA and the FDA, announced guidelines for entities who participate in the growth and cultivation of industrial hemp under the 2014 Farm Bill which allowed for universities and state departments of agriculture to begin cultivating hemp for limited purposes. Although hemp comes from the cannabis plant – as does marijuana – it generally contains smaller amounts of the psychoactive component tetrahydrocannabinol (THC). Industrial hemp can be used to make food, fuel, fabric, plastics, construction materials, textiles and paper, among other things. In recent years, many state legislatures, including Alabama, have enacted laws to promote the development of industrial hemp production. The DEA’s statement of principles is intended to clarify how federal law applies to these activities and will allow Alabama to move forward quickly.

Common Sense Counsel: In plain speak, the drug testing law for employers with regard to marijuana has not changed and it remains illegal under federal law. Even though some states have enacted laws permitting the use of medical marijuana and recreational marijuana in certain circumstances, employers can still “not accommodate” its use. Employers faced with deciding whether to follow federal law or to comply with state laws, particularly in those 7 states that prohibit employment discrimination against those holding a medical marijuana card, should adopt a state compliant drug free workplace policy with the correct “safety sensitive” language.  The policy should also contain language in compliance with the new OSHA post-accident testing guidance. The local SHRM Chapter has a breakfast briefing on this topic on September 2. To Register:   https://www.eventbrite.com/e/dont-panic-post-accident-drug-test-tickets-27098967742

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com



Thursday, August 11, 2016

Bullies Can Be Costly

 By: Thomas Eden

Patricia Hahn, a licensed vocational nurse alleged in her lawsuit she was bullied and sexually harassed by a doctor at work and the case was recently tried before a Dallas, Texas jury. Specifically, Hahn testified that the doctor had yelled, berated and punched her in the face with clinched fists, and later abruptly swung his two clinched fists to within inches of her face. On another occasion, he bent her backward in her chair, got inches away from her face as he loudly screamed threats and insults in her face. And that on three occasions, the doctor screamed at her with raised arms and clenched fists, saying “Just shut up. Just shut up, I'm sick of you,” according to court documents.

Hahn reported the behavior to her human resources department. Shortly thereafter Hahn testified she was called by the doctor into an after-hours meeting in his office, where he gave her a “demonstration” of what screaming was to prove he had not screamed at her previously.

Hahn claimed that this all occurred while working for a Dallas Urology Practice during work hours over a period of three years. Hahn was eventually fired.

On Monday of this week the Dallas jury returned a $1.08 million verdict in her favor on claims of sexual harassment and intentional infliction of emotional — which verdict will not be enforced. As luck would have, it just minutes before the jury returned from deliberations a $440,000 settlement was inked by the parties. In fact, the parties were signing the settlement paperwork when court staff knocked on the door and informed them a jury verdict had been reached. The verdict came after six days of trial and about four-and-a-half hours of deliberation.

Common Sense Counsel: This Dallas jury proved to be not very tolerant of bullying. While bullying alone is not discrimination under federal or Alabama law, when combined with protected status, or intentionally directed towards an employee who has engaged in protected conduct, it can be a dangerous courtroom combination. Bulling can be verbal, physical and non-verbal. Below are abbreviated descriptions:

·  Verbal Bullying: using browbeating language or behavior, slandering, ridiculing or maligning        a person or his/her family; spreading rumors or gossip regarding individuals; offensive name        calling or nicknaming; using a person as the target of ...;
·  Physical Bullying: pushing; shoving; kicking; poking; tripping; assault, or threat of ...;
·  Non-verbal Bullying: non-verbal threatening gestures, looks or actions that convey threatening      messages; purposefully singling out, ignoring, excluding ...

This record verdict should cause every employer to take notice and update their Professional Conduct and Prohibition Against Harassment Policy to include anti-bullying language, train on the updated policy, nip it in the bud when you witness it, promptly investigate when reported and take corrective action. Employers and Human Resource professionals need to watch out for their managers who cross the line between legitimate criticisms and berating and belittling an employee.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com


Friday, August 5, 2016

Chink in Your Anti-Harassment Armor?


By: Thomas Eden

Kandice Pullen, an employee of the Caddo Parish School Board, was hired as a temporary clerical employee working in the in the central office purchasing department. Pullen claimed that her supervisor sexually harassed her by repeated verbal sexual harassment, touched her thigh once and put his arm around her several times. On one occasion he also called her into his office and showed her inappropriate pictures of other women that he had stored on an external hard drive. Pullen did not contemporaneously tell anyone at the office about the harassment. Later, another temporary clerical employee filed a sexual-harassment complaint against the same supervisor based on similar inappropriate remarks and identified Pullen as a person potentially subject to similar harassment.

The Board placed its chief operations officer in charge of investigating the complaint, who preparing a written report according to the Board’s standing procedures for investigation of sexual-harassment allegations. He concluded that the Supervisor’s conduct was not sexual harassment but was nonetheless unprofessional and inappropriate. He recommended suspension without pay for a week and required to undergo counseling. The Board’s superintendent agreed, and punishment was imposed. In the meantime, Pullen filled an EEOC Charge detailing the Supervisor’s alleged harassment. Pullen later sued the Supervisor and the Board.

While the Board won at the Federal District Court level, the 5th Circuit Court of Appeals found a chink the Board’s defense. Normally an employer is strictly liable for a supervisor’s harassment of an individual whom he or she supervises. The Ellerth/Faragher affirmative defense is an exception and is available to employers where a plaintiff alleges sexual harassment by a supervisor but does not claim that the harassment resulted in a tangible employment action. The defense has two elements.

First, the employer must show that it exercised reasonable care to prevent and correct sexual harassment. Second, it must establish that the employee unreasonably failed to take advantage of preventive or remedial opportunities provided by the employer. The employer bears the burden of proving both elements by a preponderance of the evidence. Pullen produced evidence that, if believed, would show that employees at the central office were not trained on sexual harassment, were not informed of the existence of a policy, and were not told whom to contact regarding sexual harassment reports. Pullen, and her Supervisor, testified they were not given a copy of the harassment policy or any training on the subject. The 5th Circuit Court of Appeals on July 20 concluded that the Board did not prove that the policy was sufficiently publicized, and thus held there was sufficient evidence for a jury to find that the Board did not take reasonable steps to prevent and remedy sexual harassment. The case will go to a jury.

Common Sense Counsel: There is simply no substitute for a legally compliant anti-harassment policy, coupled with employee anti-harassment training. At the end of the day you need in personnel files each employee’s acknowledgment signature on the anti-harassment policy, and training log, or you may also find your anti-harassment Armor is full of holes.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com