Is Random Alcohol Testing Legal?

Random Alcohol TestingIn a press release dated 10/5/10, the EEOC claimed that U.S. Steel Corporation violated federal law when it applied a nationwide policy of requiring probationary employees to undergo random alcohol tests and fired an employee as a result of such a test, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit.

Apparently, the company randomly requires alcohol testing for all probationary employees. The employee was given a random alcohol test where she gave a false positive. The company doctor refused to give another form of test, which she obtained from her doctor. The employee told the company doctor that her false positive was due to a medical condition.

At issue is that the employee’s union negotiated a contract that allowed the company to test for alcohol without cause. The EEOC’s position is that the union did not have the right to negotiate on a topic that would give away rights granted under the Americans with Disabilities Act.

“Although an employer may, of course, prohibit the usage of illegal drugs and alcohol in the workplace and hold all employees to the same conduct and performance standards, the ADA strictly restricts workplace medical examinations, including breath alcohol tests,” said Regional Attorney Debra Lawrence of the EEOC’s Philadelphia District Office.  “An employer can only require an employee to submit to a medical examination such as an alcohol test if the examination is job-related and consistent with business necessity.  The EEOC is committed to eradicating systemic discrimination in the workplace, including blanket policies mandating medical examinations that violate federal law.”

The suit was filed in the U.S. District Court for the Western District of Pennsylvania, Civil Action No. 2:10-cv-01284.

The case could have far reaching impact on alcohol policies for companies of all sizes. If you have a company policy that requires random alcohol testing, you are going to want to follow this case.

Hiring Practices vs Hiring Policies

The Eighth Circuit court of appeals upheld the lower courts decision that a company can have unwritten hiring policies. However, it is generally not a good idea. The court submitted its decision for EEOC v. Con-Way Express, Inc. on September 22, 2010.

At issue, an African-American women who admitted on her application being convicted of two counts of misdemeanor thief. She was not hired and later claimed that she was discriminated to do race. The company claimed that they have a policy of not hiring people that have thief convictions. However, they did not have a written policy stating that.

The court ruled that the company was able to show that they have never hired anyone in the same situation and that none of their current employees were convicted of stealing.

Although this case was ruled in favor of the company, the burden of proof was much more onerous than it would have been, had the company had written hiring policies or procedures indicating who is eligible for hire and who is not.

Bottom line, if you are consistently using hiring criteria, write it down and use always use it.

When does the EEOC have jurisdiction over my company?

There are several employment laws that are on the books that directly affect some companies. As a business owner, you should know what they are and if they apply to your company. In general, if a company has less than 15 employees the EEOC does not have the power to respond to your employees filing a complaint. However, it should be noted that discrimination can be handled by state agencies, even if your company does not have 15 employees. Therefore, it doesn’t mean that you can discriminate; it just means that the EEOC will normally not accept complaints filed against you. Discrimination is against the law, regardless of how many employees you have working for you.

Additionally, you need to make sure that you don’t have 15 employees as defined by law. In 1992 the Supreme Court defined how you determine this in Equal Employment Opportunity Commission & Walters v. Metropolitan Educational Enterprises, Inc.

Below are the important employment laws that definitely do pertain to your company if you have more than 15 employees as defined by law.

Title VII of the Civil Rights Act of 1964 (Title VII)

Title VII prohibits discrimination based on race, color, religion, sex, or national origin. It also prohibits reprisal or retaliation for participating in the discrimination complaints process or for opposing any unlawful employment practice under Title VII. Title VII applies to:

  • Employers with fifteen (15) or more employees

Age Discrimination in Employment Act of 1967 (ADEA)

The ADEA prohibits discrimination in employment on the basis of age (40 years or older). Unlike Title VII and the Rehabilitation Act, the ADEA allows persons claiming age discrimination to go directly to court without going through an agency’s administrative complaint procedures. If, however, a complainant chooses to file an administrative complaint, (s)he must exhaust administrative remedies before proceeding to court. As with Title VII complaints, a complainant exhausts administrative remedies 180 days after filing a formal complaint or 180 days after filing an appeal with the Equal Employment Opportunity Commission (EEOC) if the EEOC has not issued a decision. The ADEA applies to:

  • Employers with twenty (20) or more employees

Title I of the Americans with Disabilities Act of 1990 (ADA)

On September 25, 2008, the President signed the Americans with Disabilities Act Amendments Act of 2008 (“ADA Amendments Act” or “Act”). The Act makes important changes to the definition of the term “disability” by rejecting the holdings in several Supreme Court decisions and portions of EEOC’s ADA regulations. The ADA applies to:

  • Employers with fifteen (15) or more employees

Equal Pay Act of 1963 (EPA)

The Equal Pay Act prohibits sex-based wage discrimination. It prohibits Federal agencies from paying employees of one sex lower wages than those of the opposite sex for performing substantially equal work. Substantially equal work means that the jobs require equal skills, effort, and responsibility, and that the jobs are performed under similar working conditions. The EPA applies to:

  • Most employers with one or more employees

Please remember, I am not an attorney. As such, this post is for educational purposes only and not intended to be legal advice. If you have specific legal questions contact a reputable labor attorney.

How to create an Employee Manual

Small businesses with more than 15 employees have a lot of employment compliance that the EEOC oversees. Making sure that you consistently and fairly treat your employees is very important; both for the employees to understand what is expected of them, as well as for the employer to clearly communicate those expectations. The US Supreme Court has held that these written policies can protect the employer from liability and lawsuits if written correctly and are used in practice.

There is a catch. That is that if you get too specific about the terms of employment, in particular the terms of discipline that would lead to termination, you may get yourself into another lawsuit. There are cases (Woolley v. Hoffmann-La Roche) where the employee manual was specific enough that the New Jersey Supreme Court ruled that the employee manual was an implied contract. This means that the “at-will” status for employment no longer applies. The courts have left a safety valve and gave guidance of a two prong test. First, make sure that you PROMINATELY display a disclaimer in your employee manual that this is NOT a contract of employment. Secondly, don’t use a bunch of legalese. It must be written in plain English so that any of your employees can read and understand it.

One related note, if your company regularly gives written communications of employee expectations, you should also consider placing that same disclaimer on these communications.

So, back to creating an Employee Manual, below is a fairly comprehensive list of topics to consider. You can pick and choose those that apply to you. There are a lot of templates out there ranging from Microsoft’s Word Templates to law firms that allow you to down load them. I recommend that you look at the list below, highlight those you want to include, find templates that you think most apply to your business, and then use their words for each section. If you need to, search on-line for the sections that the template did not include. Once you have completed all sections, have an attorney review it and make sure that they are looking for some of the topics mentioned above.

Accepting Gifts
Advances and Loans
Attire Requirements
Bribes and Kick-backs
Change of Address
Communication Policy
Company Property/tools
Conflicts of Interest
Continuation Of Medical Benefits
Continuous Service Date
Data Security
Dress Code
Drugs And Alcohol
Education Assistance
E-mail Policy
Employee Transfers
Employment Classification
Employment of Relatives
Equal Opportunity
Exit Interview
Family Medical Leave Act
Health And Life Insurance
Hourly Paid Employees/Overtime
Immigration Law Compliance
Internet Usage
Job Postings
Jury Duty
Layoff And Recall
Lunch Periods
Maternity Leave
Military Service
No Solicitation
Open Door Policy
Patents and Copyrights
Pay Period
Payroll Deductions
Performance Review
Personal Mail
Personal Time Off
Probationary Period
Retirement Plans
Safety And Accident Rules
Salary Paid Employees
Separation From Employment
Sexual Harassment
Sick Leave
Substance Abuse
Telephone Use
Time Off
Travel Expenses
Use Of Company Computers
Use Of Other Company Property
Using Personal Vehicle
Workman’s Compensation

The NRLB- Employees, Employers and Facebook

Well it appears that the NRLB has stepped into the social networking arena. They have recently ruled that a company cannot fire an employee due to negative remarks about the company or it’s management. This could have far reaching effects on the ability of an employer to control off the clock activities and conduct of it’s employees.

According to a post from Attorney Russ Brown in his blog, the NRLB found:

“Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity”

The NRLB has scheduled a hearing on the issue for mid January 2011.

Reporting Medical Coverage is Optional This Year

The IRS has stated that it will defer the requirement for employers to report the cost of medical coverage for employer-sponsored group health plans. It will be optional for employers to report this in 2011. Even though reporting coverage cost is optional in 2011, the IRS reports that the amount that your company reports is still not taxable. They say that the new reporting is meant to be for informational purpose only. This requirement was part of the “Affordable Care Act” passed by Congress earlier this year. They contend that the Act, amongst other things, is to provide your employees with transparency to their overall health costs.

In the draft of the 2011 W-2, the form includes an area for the new codes so that the employer can report these costs. Although this is still in the draft stage, it is clear that the IRS is moving towards full compliance of employers by 2012 tax year. They have postponed the requirement in an effort to allow employers time to change their payroll account systems to report these health care costs. Additionally, the IRS is slated to publish guidance on the new requirement later this year. It would be wise to start the process now of changing you accounting/payroll to ensure that you are easily able to comply with this requirement by the end of 2011.