Posts Tagged ‘employee’

DOL Sues Employer for Unpaid Pre- and Post-Shift Work

by HDlawblog Posted: Monday, 7/11/2016

The Department of Labor (DOL) filed a lawsuit against Five Star Automatic Fire Protection in the Western District of Texas on July 7th, alleging the company failed to properly compensate its workers for labor they performed prior to and following their standard shifts. The DOL is seeking $321,000 in back pay and damages—a sharp reminder that the Fair Labor Standards Act (FLSA) requires employers to fully compensate their employees for all the work they do, including work done before and after they are on the job site.

The DOL’s attempted application of the rule is not new or even surprising, but it should grab employers’ attention, because it is a prime example of the type of wage and hour practices that put an employer on the wrong end of a costly lawsuit.

According to the DOL complaint, Five Star required its workers to begin their day at its office, where they loaded materials into a company vehicle before driving to the job site. After they were done at the jobsite for the day, Five Star required them to return the company vehicle to the office. The DOL has filed a complaint because it alleges Five Star did not compensate employees for this pre-shift and post-shift work.

FLSA requires employers to pay employees for all hours worked. Generally, any activity performed for an employer, whether it is done on the job site, at the office, or even off work premises, counts as time worked if the employer knows or has reason to believe work is being done. Activities such as preparing materials integral for work—the kind of pre-shift and post-shift work performed in this case—must be compensated as work. Even if Five Star did not intend to purposefully shortchange its workers, that fact alone will not shield it from liability. Remember: An employer must pay workers for all hours the employer knew or “should have known” the employee worked, and for hours that exceed 40 in a workweek, the employer must pay time-and –a-half. The unpaid pre-shift and post-shift hours, if properly counted, most likely cause the employees’ hours worked to exceed 40, and therefore the failure to pay for both the hours and overtime hours worked may be deemed a significant violation.

Employers can avoid placing themselves in Five Star’s position by ensuring that all hours are recorded accurately and that employees are not performing work outside of the time they are clocked in. Contractors can give their employees an option of riding to the jobsite in a company vehicle but employees cannot be allowed to perform any work before they arrive at the jobsite—or they will be in the same position as Fivestar is in this case.  If you have any questions about travel policies or any other FLSA issues, please contact us at Harmon & Davies, P.C.

This article is intended to provide general information, not a specific legal opinion or advice. Any particular questions should be directed to your legal counsel. If you do not have legal counsel, please feel free to contact Harmon & Davies, P.C.

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PA Workplace Misclassification Act

by HDlawblog Posted: Friday, 4/29/2016

In March 2016 the Pennsylvania Department of Labor and Industry produced a white paper report on the “Administration and Enforcement of the Construction Workplace Misclassification Act in 2015.” Under the Act, the DLI investigates and penalizes construction companies that misclassify employees as independent contractors.

Here’s a quick snapshot from the Report:

pic for 4-29-16 blog

But in 2013, under similar circumstances, the Pennsylvania Commonwealth Court held that the general contractor’s payments to the subcontractor did not afford protection, and the Prompt Payment Act did not shield the contractor and the surety from liability. Berks Products Corp. v. Arch Ins. Co., 72 A.3d 315.

Those are the cases of Workplace Misclassification that the Bureau of Labor Law Compliance has investigated in the past five years. Notably, there were more investigations in 2015 than the previous four years combined. Also, the investigations netted $217,450 in penalties, which is a 1,612% increase from the 2014 penalty amount. In fact, the Bureau only collected $12,700 in penalties in 2014. Point being, DLI is emphasizing the enforcement of this Act, and all construction companies should take a very close look at how they supply manpower to their projects.

The Workplace Misclassification Act applies to all construction companies working on all types of projects—public, private, residential, or commercial. The Act sets forth a checklist of considerations that are scrutinized when determining if a laborer on a project is actually an independent contractor. If the laborer is misclassified as an independent contractor—when in fact he is really an employee—DLI will levy a fine. In some instances, DLI has the authority to seek criminal prosecutions.

To comply with the Act, every independent contractor must have a written contract. Further, every laborer should be analyzed with consideration of the numerous other requirements under the Act. DLI generally receives its leads from (1) complaints filed by laborers; (2) findings made during construction site visits; and (3) referrals from other government agencies, particularly the Office of Unemployment Compensation Tax Services. To avoid penalties, it is best to review your laborers and seek legal advice as necessary.

What’s Happening Now . . .

11.2 % Increase

  • Increase in construction spending for first two months of year, comparing 2015 to 2016.
  • Construction spending for January & February 2015 was $141.3 billion.
  • Construction spending for January & February 2016 was $157.1 billion.

Source: U.S. Census Bureau News, February 2016 Construction at $1,144.0 Billion Annual Rate, U.S. Dept. of Commerce (Apr. 1, 2016).

Newsletter written by Jeffrey C. Bright, Esq. , an attorney licensed in Pennsylvania and Maryland. For more information, contact an attorney at Harmon & Davies, P.C.

 

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EEOC Compliance in Pennsylvania

by HDlawblog Posted: Thursday, 5/1/2014

Harmon & Davies is presenting a seminar through Lorman on August 19, 2014, on EEOC Compliance in Pennsylvania.  Attorneys Tom Davies, Laura Gallagher and Kimberly Overbaugh will provide a federal and state overview of employment and labor laws, including new initiatives of President Obama’s administration, and then discuss handling investigations, responding to EEOC/PHRC Charges, social media and the hiring process, and common mistakes and how to avoid them.  Please join us and bring your questions for a panel discussion.  For more information, go to  http://www.lorman.com/training/384528?discount_code=M9763581&p=13389&s=direct or contact us at 291-2236.

 

 

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Supervisors must have Authority to Hire and Fire

by HDlawblog Posted: Thursday, 8/8/2013

On June 24, 2013, the U.S. Supreme Court held in Vance v. Ball State University that when analyzing harassment claims, to determine whether the employer is vicariously liable, a “supervisor” is an individual who has the authority to take tangible employment actions against others.  Individuals who do not has this authority should be treated as “co-workers.”

As background, in the 1998 Faragher and Ellerth decisions regarding employer liability for sexual harassment, the Supreme Court held that an employer can be held liable for harassment by coworkers only if the employer did not take sufficient steps to prevent and correct harassment, but the employer is strictly liable for the harassment by a supervisor if it resulted in a tangible employment action (such as discharge or demotion).  In Vance, the Supreme Court clarified that in order the employer to be strictly liable, a supervisor must be a person who has the authority to hire, fire, demote, promote, transfer, or discipline, or otherwise take tangible adverse employment actions against employees.

The Vance opinion will allow employers to demonstrate in more cases that they have taken appropriate measures to prevent and correct harassment because fewer individuals will meet the definition of supervisor.  In addition, because whether an individual is deemed a supervisor is more clear, employees (probably on the advice of counsel) may be more likely to try to resolve matters internally.  However, employers should be aware that even if higher-level, non-supervisory employees such as shift leads and foremen do not have the authority to take tangible employment action, they may still be held to a higher standard than regular co-workers, so employers should be sure they are properly trained on harassment.

In addition, given the importance of the term supervisor under this decision, employers should make sure their job descriptions accurately reflect the authority given to each position.  Employers should also review policies regarding decision-making procedures and complaint procedures to ensure that the authority given to various positions is accurate and consistent with the Company’s intentions.

This article is authored by attorney Laura Bailey Gallagher and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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EEOC Tests its Guidance on Use of Criminal Records

by HDlawblog Posted: Monday, 8/5/2013

On June 11, the EEOC filed its first test cases under its guidance on the use of criminal records in making hiring decisions.  The defendants are Dollar General Corp. and a BMW manufacturing plant in South Carolina.  The claims, filed in federal courts, allege that the defendants’ use of criminal background checks disproportionately excluded Black candidates on the premise that Blacks have a higher rate of criminal convictions than Whites.

As background, you may recall that in 2012, the EEOC issued Guidance on the use of criminal records in employment decisions which states that the EEOC will find any policy that automatically excludes applicants due to criminal records constitutes evidence of discrimination. According to the Guidance, arrest and incarceration rates for Blacks and Hispanics are 2 to 3 times greater than for Whites; therefore, using criminal records as a bar to employment disproportionately excludes minorities and results in disparate impact discrimination.

The EEOC requires that when an employer asks whether an applicant has criminal convictions, an employer must state that conviction is not an automatic bar to employment. When a criminal conviction is disclosed either on the application or in a background check or both, the employer must conduct a “targeted screen” to consider the nature of the job, the nature of the offense, and the time passed since the conviction and/or completion of the sentence.  The employer must also conduct an individualized assessment by informing the job candidate that s/he may be excluded from employment due to the conviction and provide an opportunity to describe or explain circumstances including age at time of conviction, rehabilitation, mistaken identity, employment history after conviction or other factors.

Dollar General and the BMW plant have been accused of having policies that automatically bar employment without following the targeting screening and individualized assessment process.  Both deny the allegations.

The claims against Dollar General allege that its policy that automatically bans candidates who have been convicted of possession of drug paraphernalia or flagrant failure to pay child support within the last 10 years, or illegal dumping or improper supervision of a child within the last 3 years is unlawful because it fails to consider other factors such as the age of the applicant when the crime was committed and whether the crime is related to the job.  The lawsuit alleges that Dollar General’s policy has unlawfully excluded candidates nationwide for almost 10 years.

The BMW manufacturer is charged with discriminating against Blacks when it required its new warehouse staffing contractor to conduct criminal background checks on all current and new employees and terminate or exclude anyone who had a criminal record from any year.  The previous contractor excluded candidates with a criminal record within 7 years.  The new contractor was hiring the old contractors, and as a result of BMW’s new policy, 88 workers were discharged, 70 of them Black, including some who had worked at the warehouse for more than 10 years.

While these cases may take years to conclude, depending on how they are resolved, they may test EEOC’s interpretation of what constitutes evidence of disparate impact under Title VII.  Meanwhile, employers should refrain from implementing policies that automatically exclude job candidates based on specific parameters of their criminal convictions, such as time of conviction or type of crime.  Instead, employers should examine whether the crime for which the candidate was convicted is related to the nature of the job; for example, a conviction of forging checks may be related to a cashier or bookkeeping position and may therefore be a bar to employment.  Employers should also consider the individual’s circumstances, such as the candidate’s age at the time of the conviction, how much time has passed, and whether the candidate has been able to hold any jobs or complete education after the conviction.  In the event employment is denied on the basis of a criminal record, the employer should have a justifiable basis for the denial.

This article is authored by attorney Laura Bailey Gallagher and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Merely Undergoing IVF Treatment Does Not Insulate Employee from Termination

by HDlawblog Posted: Friday, 7/5/2013

A New York waitress who was fired shortly after telling her managers that she started in-vitro fertilization did not establish sex discrimination claims because she failed to show that the stated reason for her discharge, which the company claimed was her poor performance, was pretextual.

In the case of Govori v. Goat Fifty LLC, the Second Circuit rejected the waitress’s contention that the close timing between her revelation that she was undergoing IVF treatment and her discharge was enough to rebut the restaurant’s legitimate nondiscriminatory reason for firing her.  The restaurant claimed that the waitress had a history of poor performance that culminated when she allegedly yelled at a customer on her last day of work.  Additionally, the waitress’s managers were already well aware that the waitress wished to become pregnant and was contemplating IVF before she announced that she had started IVF treatment.  In fact, her managers allegedly supported the waitress in her desire to become pregnant.  Thus, the court concluded that the waitress’s announcement that she was starting treatment was at most “her commencement of but one more step toward her previously announced but still uncertain goal of conceiving a child.”

Although the waitress alleged that her manager told her that she had chosen a different “path” during the telephone call in which the manager terminated the waitress, and that the different “path” referred to the “mommy track” or “mommy path,” the court found that the use of the word “path” could not plausibly be construed as a reference to the “mommy track”.  Rather the court reasoned that the comment about choosing another path was the sort of comment a friend might plausibly use as an attempt to soften the blow of firing an employee with whom she was close.

Because the court found that the waitress failed to refute that her poor performance was the cause of her termination, the court declined to address whether the Pregnancy Discrimination Act (“PDA”) covers employees who allegedly are fired for undergoing IVF treatment.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Court Sides with Employer that Terminated Employee after Catching her Partying while on FMLA Leave

by HDlawblog Posted: Thursday, 1/10/2013

In the case of Jaszcyszyn v. Advantage Health Physician Network, the Sixth Circuit recently sided with an employer that terminated an employee after it caught her partying at a Polish heritage festival while she was supposedly too disabled to work.  It’s a case of Facebook strikes again.  The termination was based upon the employer’s belief that the employee was engaging in FMLA fraud.

The whole ordeal came to the employer’s attention after the partying employee was spotted by her Facebook friend/coworker partying it up while her colleagues were at the office covering for her.  Naturally, the coworker took the pictures to a supervisor.

The employer gave the employee an opportunity  to explain the discrepancy between her claim of complete incapacitation and her partying behavior in the photos.  Guess what?  The employee didn’t really have a response, was silent, or claimed that she was in pain at the festival and just not showing it.  When the employee repeatedly failed to respond or to provide a legitimate justification for her action, the employer terminated her.  Following the employee’s termination, someone in HR completed a report that selected “absenteeism/lateness” from a list of six possible reasons for discharge.

The employee filed a lawsuit in the U.S. District Court for the Western District of Michigan alleging that she was fired in violation of the FMLA.  Her claims included a count for interference with her right to take leave and a count for retaliation for taking leave.  The trial court dismissed the employees’ claim before it went to trial and the employee appealed to the Sixth Circuit.

On appeal, the court found that the employer had not interfered with the employee’s right to take FMLA leave as it had granted her requests for FMLA leave in full.  As for the employee’s retaliation claim, the court found that the employee offered little or no evidence linking her termination to activity protected by the FMLA.  Moreover, even though the person in HR had checked “absenteeism” on the form rather than “fraud” the court was not persuaded that the employee’s mere use of leave was the reason for her termination.  The court specifically said that selecting absenteeism on a standardized form did not establish that the employer’s explanation of the firing was a pretext for unlawful retaliation.  Rather, the court found that the employee never refuted the employer’s honest belief that the employee’s partying at the Polish heritage festival was inconsistent with her claims of disability.  Therefore, the employee could not show that the employers legitimate reasons for terminating the employee, i.e., her fraudulent behavior, was a pretext.

Employer Tip:  Employers should be aware of the sensitive issues that surround terminating employees while they are on FMLA leave.  While this case ended well for the employer, the employee might have had less fodder for her lawsuit if the HR person had not checked “absenteeism”, but had rather written “fraud” on the form.  It is recommended that you consult with an attorney before making such decisions.  The attorneys at Harmon & Davies are here to advise employers on all Employment and Labor Law matters.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Another Employee Fails in Her Attempt to Pursue an FLSA Claim Involving Expressing Breast Milk at Work

by HDlawblog Posted: Friday, 12/28/2012

The passage of the Fair Labor Standards Act (“FLSA”) provision requiring employers to provide mothers a reasonable break time and private place to express breast milk has created fodder for a few lawsuits, one of which I blogged about not too long ago.  In another recent case (Miller v. Rosche Surety & Cas. Co.), the 11th Circuit, a federal court, held that a female employee who was fired after she sent a company executive an email asking where she could express breast milk, while temporarily working at a different office, did not have a viable retaliation claim under the FLSA because no reasonable jury could interpret her email as a protected complaint.  Allow me to explain:

The FLSA protects employees who engage in protected activity from retaliation by their employers.  A clear example of a protected activity would be a written complaint to an employer informing the employer that the employee believes his/her rights under the FLSA are being infringed upon and calling for protection of those rights, but rarely are complaints to employers so straightforward.  Therefore, to determine whether a complaint constituted a protected activity, the law asks whether a reasonable jury could interpret the complaint as protected activity.  And, according to a Supreme Court ruling in 2011 (Kasten v. Stain-Gobain Performance Plastics Co.) the highest court of our nation has even said that an oral complaint may trigger the FLSA’s anti-retaliation provision.  However, even an oral complaint has to have some degree of formality in order to give the employer fair notice that an employee is lodging a grievance.  Indeed, a complaint needs to be clear and detailed enough to put a reasonable employer on notice, considering the context and content, that an employee is asserting rights provided by the FLSA and calling for protection of those rights.

In the Miller case, a female employee who worked for a Florida bail bond company simply sent an email to a company executive asking about where she could use her breast pump while working somewhere other than her usual place of work.  The 11th Circuit held that this inquiry could not reasonably be construed as an FLSA complaint because the email did not put the employer on notice that the employee was lodging a grievance.  The 11th Circuit also held that the employee could not raise a triable issue regarding whether the employer violated the FLSA provision that requires employers to provide employees with a private place to express milk because the employee testified that she was given necessary breaks for this purpose and had access to a private place to do so while at her regular office.

Interestingly, the employee cited to a Family Medical Leave Act (“FMLA”) case to support her view than an employee’s “prospective request” that an employer comply with the FLSA is “protected activity” under the act.  However, the 11th Circuit distinguished the FMLA case in which it ruled that an employee’s pre-eligibility request for post-eligibility maternity leave was protected under the FMLA on the basis that the FMLA contains a provision making it unlawful for employers to “interfere with, restrain, or deny” an employee’s exercise, or attempt to exercise, any right provided by the FMLA while the FLSA lacks a comparable provision.

Finally, the employee unsuccessfully argued that because the employer monitored her email communications at work, an email that she sent to a friend under the subject line “Federal Law” that referenced the FLSA provision regarding expressing breast milk was akin to an FLSA complaint. The Court rejected this argument because the employee never showed the email to the employer and never told anyone at her company that she believed the company was violating the provision.  Therefore, the email to the employee’s friend did not effectively notify the company of her grievance.

Lesson for Employers:  Although this case ended well for the employer, employers should take issues surrounding expressing breast milk at work seriously.  In a case such as the one discussed above, the employer, knowing that the employee was pumping at work, might have chosen to proactively inform the employee where she could pump while working at the different location, which effort would have cast the employer in the best light possible.  For large employers, paying attention to the individual needs of each employee might not be possible, but larger employers might be able to designate lactation areas that eliminate the need for employees to inquire about suitable places to pump while visiting other offices or have written express breast milk policies that address how employees should handle pumping away from their regular place of work.  The attorneys at Harmon & Davies are here to assist employers with navigating issues surrounding expressing breast milk at work.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Employee’s Failure to Report Overtime Thwarts Her FLSA Claim

by HDlawblog Posted: Monday, 11/12/2012

In a split decision, the Sixth Circuit recently held that a nurse’s failure to follow her employer’s procedures for reporting time spent working during an unpaid meal break was fatal to her Fair Labor Standards Act (“FLSA”) claim.  In White v. Baptist Mem’l Health Care Corp., the majority of the court found that the trial court’s dismissal of the employee’s case before trial was proper because her employer could not have known or had reason to know that the employee was not receiving pay for missed meal breaks as the employee was not using the employer’s exception log to record the extra time that she worked.  Additionally, the employee offered no evidence that the employer discouraged employees from reporting meal break work or that it was otherwise notified that employees were not reporting such work.

By way of background, before being hired, the nurse signed a document stating that she understood that unpaid meal breaks would be deducted from her paycheck, but that any time spent working during meal breaks had to be noted in an exception log in order for the nurse to be paid for that time.  The nurse acknowledged that in instances when she and her entire nursing unit reported working during a meal break, the hospital compensated her for that time.  However, the nurse also alleged that there were instances in which the hospital did not pay her when she individually worked through a meal break and reported it on the log.  Although, the nurse notified supervisors about missed meal breaks, she never complained to supervisors that she was being unpaid when she worked through her meal breaks–a distinction the Sixth Circuit found quite important.  Eventually the employee stopped using the exception log because she claimed that reporting missed meal breaks just seemed like an “uphill battle.”

Given these facts and circumstances, the Sixth Circuit, relying on case law from the Eighth, Fifth, and Ninth circuits, said that an employer that establishes a “reasonable process” allowing employees to report unpaid work time will not be liable for nonpayment where an employee does not follow that process because when an employee fails to follow the reasonable time reporting procedure, she prevents the employer from knowing its obligations to compensate the employee and thwarts the employer’s ability to comply with the FLSA.  Thus, the court found that there was no way for the hospital to have known that the employee was not being compensated for missing her meal breaks.  As such, the court held that the employee’s claim failed.

In so holding, the Sixth Circuit distinguished this case from cases where employers prevented employees from reporting overtime or where the employers were otherwise notified of the employee’s unreported work.  In this case, however, the employee presented no evidence that the employer discouraged her or other employees from reporting on exception logs the time they spent working during meal breaks, or that the hospital was otherwise notified of the unreported work.

Interestingly, the dissenting opinion notes that an employer violates the FLSA if it had actual or constructive knowledge that an employee worked without pay regardless of whether the employee has properly reported the time.  The judge writing the dissenting opinion felt that the employee had raised a triable issue regarding whether the employer had actual knowledge because, among other things, the supervisors knew the employee was working through lunch and complaining about it, and should have responded to the employee’s complaints by asking her to make sure she signed the exception log.  As such, the judge authoring the dissenting opinion felt that a reasonable jury could view such acts as supervisor pressure for the nurse not to report her missed breaks, which would point to constructive knowledge of unpaid time.

Lessons for Employers:  There are several things that employers should take away from this case.  First, employers should establish a reasonable process for employees to report unpaid work time.  Second, even though the court ruled in favor of the employer, it was a split decision with the dissent indicating that the employer should have responded to the employee’s complaints about working through her meal breaks by asking the employee to make sure that she followed the reporting procedure.  Accordingly, to be on the safe side, employers should train their supervisors to provide such a response in the event that there are complaints about working through breaks or working overtime and, to be be on the extra safe side, to record such exchanges in writing.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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New Jersey Court Issues Ruling That Should Have Employers Checking Their Drug and Alcohol Policies

by HDlawblog Posted: Thursday, 11/8/2012

In late October 2012, a New Jersey appeals court issued a ruling that gives employers reason to carefully check their drug and alcohol policies.  In A.D.P. v. ExxonMobil Research & Eng’g Co. an employee identified herself as an alcoholic seeking rehabilitation and pursuant to company policy, the company entered into an after-care contract with the employee that required her to submit to random drug testing for a two year period during which time she had to abstain from alcohol use or else she could be terminated.  After failing one of 10 random alcohol tests, ExxonMobil terminated the employee and she sued the company under the New Jersey Law Against Discrimination (“NJLAD”) alleging that the after-care contract and its terms, imposed upon her solely because she identified herself as an alcoholic, along with ExxonMobil’s termination of her for violating the after-care contract, constituted disparate treatment discrimination based on disability.

The trial court dismissed the employee’s claims before her case went to trial, but on appeal the appellate Court found the dismissal of the employee’s claims to be improper on the grounds that the after-care contract and the testing requirements contained therein constituted a policy that was imposed only against employees who were identified as alcoholics.  The court found that although the use of alcohol alone would not be grounds for terminating the employment of other employees, alcoholics like the employee could be fired for one “slip” even if their job performance was not affected.  Thus, the Court held that the policy was facially discriminatory and direct evidence of bias.

  1. Where the Court Found Fault with ExxonMobil’s Drug and Alcohol Policy

In the ExxonMobil case, the company’s written drug and alcohol policy mandatorily and uniformly required that any employee identified as an alcoholic agree to submit to random alcohol testing for two years after being so identified.  The New Jersey appellate court found that ExxonMobil’s reliance upon such blanket requirements only confirmed the facially discriminatory nature of the Policy and undermined the defenses that the employer tried to present.  Indeed, the alcohol testing imposed on the at-issue employee was never initiated as a result of performance related issues.  Rather, the testing requirement was imposed only after the employee voluntarily disclosed to a company nurse that she was an alcoholic and was going to check herself into a rehabilitation program.  This disclosure resulted in the blanket imposition of ExxonMobil’s after-care contract upon the employee, the terms of which included submitting to random drug tests for a period of two years.

The purpose of ExxonMobil’s drug and alcohol policy was to promote the company’s commitment to a safe, healthy, and productive workplace.  Under the policy, being unfit for work because of drug or alcohol use was grounds for termination.  However, the policy also provided that employees with alcohol or drug dependency problems undergoing rehabilitation would not be fired, but would be required to sign an after-care contract as a condition of returning to work.  The after-care contract required a returning employee to maintain total abstinence from drugs or alcohol, submit to random drug testing for two years, and consent to monitoring for an additional three years.  According to the after-care contract, a positive test was grounds for discipline including termination.

In the ExxonMobil case, the employee was terminated after passing nine random breathalyzer tests when her tenth breathalyzer test showed a blood alcohol level of .047 and .043 (under the state legal limit of .08 for driving under the influence) even though there was no evidence that she consumed alcohol at work or that she violated a company policy by being unfit for work because of alcohol use.  There was also zero evidence that she had been told that her job performance had become unacceptable.

Rather, the evidence showed that the imposition of the after-care contract was unrelated to the employee’s job performance.  In fact, a representative of the company went so far as to say that the employee would have been terminated for failing the breathalizer even if she had been performing at the top one-percent of her group.

Under these circumstances, the New Jersey Court found that the employee’s claims should not have been dismissed before trial because the evidence (viewed in the light most favorable to the employee) showed that the basis for ExxonMobil’s testing requirement and its termination of the employee was her voluntary disclosure that she was an alcoholic, not her subpar work performance. Thus, the court found the imposition of the testing requirements and the decision to terminate the employee for failing a breathalyzer test amounted to direct proof of discrimination.

  1. Why ExxonMobil’s Defenses Failed

Interestingly, ExxonMobil might have defeated the employee’s claims despite the direct proof of discrimination if ExxonMobil had been able to show that it would have terminated the employee even in the absence of her failed breathalyzer test.  Indeed, New Jersey law provides two statutory justifications for employers in such situations, but ExxonMobil did not attempt to avail itself of either justification, most likely because these statutory justifications are based upon performance issues, and there was absolutely no evidence that the employee had performance issues.

Instead, the company tried to justify its policy on the grounds of “reasonableness.”  However, the so-called reasonableness test, which the employer argued was based on business necessity and safety failed because: (1) the business necessity defense only applies in adverse impact discrimination cases and this case involved disparate treatment bias; and (2) although the safety defense applied, ExxonMobil could not establish the defense because the safety defense requires an employer to make an individualized assessment of the safety risk, and there was no evidence in the record that an individualized assessment of any kind was conducted in this case.

  1. The Takeaway

If you are an employer and your drug and alcohol policy could result in an employee being fired based solely upon the employee being identified as an alcoholic or drug addict, and not as a result of performance issues or any individualized safety assessment, your policy might be found to be facially biased and direct proof of disability discrimination.  If this is the case, revisions to your policy are encouraged.

The attorneys at Harmon & Davies, P.C. are here to assist employers with all employment law related needs, including assisting employers with drafting and revising drug and alcohol policies.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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