New DOT Regulation Requires Expanded Observed Urination in Drug Testing
Effective August 25, 2008, the Department of Transportation will require transportation workers who previously tested positive for prohibited drugs to give urine specimens while being watched by specimen collectors. The new regulations will apply to workers in safety-sensitive positions in the aviation, motor carrier, rail, transit, maritime, and pipeline industries.
Under current regulations, only workers suspected of tampering with their specimens are required to provide samples while being watched. However, the DOT is concerned that a "various mechanical devices are now readily available to individuals who want to adulterate or substitute their urine specimen during a drug testing collection." The new regulations require an employee giving the sample to raise his shirt, lower his pants and turn around to show the observer that he is not using a "prosthetic device."
"Prosthetic device?" Think we're joking? Guess again.
EEOC Updates Compliance Manual on Religious Discrimination
Earlier this month, the Equal Employment Opportunity Commission (EEOC) updated its compliance manual on religious discrimination. This update is timely: according to EEOC statistics, there were 2,880 religious discrimination charges filed with the EEOC in 2007, up nearly 12% from 2006. Want more guidance? The EEOC also has this handy Q&A sheet on religious discrimination laws.
NLRB Issues New Guidelines on Employee Political Activity
You have an employee who is using the breakroom as his bully pulpit, discussing his political views with his coworkers. Some coworkers complain to you that they don't want to hear it, so you call the employee in to your office and tell him to keep his views and opinions to himself. A no-brainer, right? Not so simple, according to new guidelines from the National Labor Relations Board on employee's political activities in the workplace.
According to the new guidelines, employee political speech that touches on employment issues may be protected by Section 7 of the National Labor Relations Act. In essence, if there is a direct nexus between employment-related concerns and the specific issues that are the subject of the political speech, then the speech is protected. Of course, you can still counsel the employee to confine his activities to appropriate places and times, if it is interfering with work.
So, the employee's views on why the U.S. should pull out of the U.N.? Why industrial hemp should be legalized? Probably not protected speech. The employee's views on the minimum wage, or the expansion of medical marijuana laws to require workplace accommodation? Probably both protected under the NLRA.
According to the new guidelines, employee political speech that touches on employment issues may be protected by Section 7 of the National Labor Relations Act. In essence, if there is a direct nexus between employment-related concerns and the specific issues that are the subject of the political speech, then the speech is protected. Of course, you can still counsel the employee to confine his activities to appropriate places and times, if it is interfering with work.
So, the employee's views on why the U.S. should pull out of the U.N.? Why industrial hemp should be legalized? Probably not protected speech. The employee's views on the minimum wage, or the expansion of medical marijuana laws to require workplace accommodation? Probably both protected under the NLRA.
Federal Minimum Wage Rates Increase to $6.55/hour
Effective today, July 24, the Federal Minimum Wage increases to $6.55 hour. This is the second of three increases provided for by the enactment of the Fair Minimum Wage Act of 2007. A third minimum wage increase to $7.25 per hour becomes effective on July 24, 2009.
This increase does not affect most Western states, which have higher state minimum wages. Employers in Utah and Idaho, however, are affected by the increase and should make sure they comply. Need to verify your state's minimum wage? The Department of Labor has this great chart - just click on your state for current minimum wage information.
This increase does not affect most Western states, which have higher state minimum wages. Employers in Utah and Idaho, however, are affected by the increase and should make sure they comply. Need to verify your state's minimum wage? The Department of Labor has this great chart - just click on your state for current minimum wage information.
Is There A Right Way To Fire Someone?
We all know that times are tough and layoffs and terminations are on the rise. The New York Times online edition is currently running a very interesting reader's forum on whether there is a right way to fire someone. (Of course, most of us know there are many wrong ways - a lesson some of us have learned from painful experience.) You may have to sign up to be a NY Times online subscriber to access the forum, but it's free. The Times also has this great article on termination trends. Thinking about firing a whole bunch of people at once? Maybe it's time for this refresher on the WARN Act, courtesy of the NY Employment Law Letter. Jail Time For Washington Employer
As part of a plea agreement reached earlier this month, Jerry and James Schram, co-owners of a Vancouver, Washington construction company, will serve 30 days of jail time and perform community service. Their crime? Hiding information in an attempt to reduce their workers' compensation premiums. In addition, the Schrams also pleaded guilty to misdemeanors for the unpaid wages and will pay 13 employees their back overtime, totaling over $350,000. The plea agreement was announced by the Washington Department of Labor and Industries, which brought the claims.
Oregon: Leave for Olympic Athletes?
Local athletes did remarkably well at the 2008 Track and Field Olympic Trials in Eugene, Oregon, which raises an interesting leave issue. It's an obscure law, but Oregon requires employers to give Olympic athletes leave to compete. Under ORS 659.865, it is an unlawful employment practice for an employer to infringe on an employee's right to participate in any athletic event sanctioned by the national government body for that sport as recognized by the U.S. Olympic Committee. It's similarly unlawful to discriminate against employees who compete in Olympic sports. Unfortunately for this author, the law does not extend to beer pong.
New Laws Aim to Prevent Employers From Banning Firearms
By now, we've all read about the Supreme Court decision holding that the Second Amendment guarantees a private right to possess firearms. But here's an interesting trend in firearms law that directly impacts employers: several states have passed or are considering laws preventing employers from prohibiting employees from keeping firearms in their cars on company property. Florida Governor Charlie Crist signed such a law, which went into effect July 1, although that law is being challenged in Federal Court. Georgia Governor Sonny Perdue signed his state's version in April, which took effect immediately. Louisiana passed its version in July, and it will go into effect August 15. Oklahoma passed such a law in 2004, but a federal district court issued an injunction blocking the law from taking effect, and that case is currently pending before the 10th Circuit Court of Appeals.
Firearm rights' groups such as the National Rifle Association were very active in passing these laws. Employer groups like the Society for Human Resource Management, the Brady Center and major employers like Disney World opposed them on the basis that they infringe upon employers' property rights, violate federal occupational safety laws and increase the risk of workplace violence.
Given the momentum it received from Supreme Court's ruling on the D.C. gun ban, we anticipate the pro-gun lobby will become even more active in seeing similar laws passed in more states. The western states, with their libertarian attitudes and high rates of gun ownership, are likely to become the gun lobby's next targets. Major employers and employer groups will likely challenge these laws, both in the state legislatures and the courts. The 10th Circuit ruling on the Oklahoma law may well decide how prevalent these laws will be. And rest assured, Ted Nugent will be involved.
AFTRA Ratifies Three-Year Contract
Good news for us consumers of entertainment: members of the American Federation of Television and Radio Artists just ratified a new three-year prime-time television agreement with major Hollywood studios and networks. AFTRA represents about 70,000 radio and television performers. Negotiations between the studios and the Screen Actors Guild, however, continue, threatening the continued production of such fine fare as Lipstick Jungle. Which might also be good news.
Ninth Circuit Affirms "Emotional Distress Damages" Caused by Denial of FMLA Leave
Plaintiffs suing their employers under the Family and Medical Leave Act ("FMLA") may recover lost wages, but they may not recover emotional distress damages. What if an employee misses work because of emotional distress that is caused by a wrongful denial of FMLA leave? The Ninth Circuit Court of Appeals recently ruled that such damages are a form of lost wages and therefore may be recovered under FMLA.
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Hang Up and Drive! Washington and California Ban Cell Phone Use While Driving
Last night I was riding home and was almost run off the street by a woman reading a novel while driving, when I remembered: Effective July 1, 2008, new laws in California and Washington prohibit the use of hand-held cell phones while driving. Drivers may, however, use a cell phone if the communication is made using hands-free device such as a bluetooth headset or wired headset. Earlier this year, another Washington law went into effect banning text messaging while driving. In Washington, both the cell phone and the text messaging laws are "secondary enforcement " laws, meaning that offenders will only receive a ticket if pulled over for another traffic violation such as speeding or running a stop sign. California law enforcement, however, is authorized to ticket drivers only for cell phone use. As far as I know, Oregon does not yet prohibit reading while driving (but it should!)
Want more information? The California DMV has a great Q&A site on its new law. Don't live in Washington or California but want to know what the law is in your state? Check out this handy chart of state cell phone laws from the Governor's Highway Safety Association.
Employers should alert their employees who may drive in California or Washington as part of their job duties. And employers in all states might consider implementing a cell phone policy that restricts the use of cell phones while driving. Recent years have seen a large upswing in lawsuits against employers who supply their employees with cell phones, if the employee is then in an accident while using the phone.
