Archive for September, 2012

Be Careful What you Wish for!

Ladies and Gentlemen:  (drum roll please)  The NLRB has finally issued a social media decision.  No more relying on General Counsel memos or worrying about whether or not the sample policy that Acting GC Laffe Solomon said was valid is still worth looking at. (You may recall that the NLRBB Inspector General alleged Solomon may have violated ethical rules by participating in the Wal-Mart social media case while he held a substantial financial interest in the company.)  No more trying to parse through pages and pages of nonsense.

Finally, some clarity.  Yes, on September 7, in Costco Wholesale Corporation and UFCW Local 371, 358 NLRB No. 106 (2012) we finally got some clear and well-reasoned direction from the Board (can you hear the sarcasm as I type this?).

At least that was what I hoping for. But turns out that  the decision is unclear and not what we were looking for at all.

In fact, the decision is, well, it’s just ridiculous.  That’s right, I said it: Ridiculous.

The decision deals with a bunch of Costco’s policies.  The one we are interested in, the electronic communication policy, says the following:

Any communication transmitted, stored or displayed electronically must comply with the policies outlined in the Costco Employee Agreement.  Employees should be aware that statements posted electronically (such as [to] online message boards or discussion groups) that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.

Seems okay to me.  In fact, it seemed okay to the administrative law judge that initially decided the case, too.  He said this policy was valid because “employees would not reasonably construe this rule as regulating and thereby inhibiting, Section 7 conduct.”  Well, that should take care of that, right?

Oh, wrong, so very wrong. The Board said the ALJ was wrong. The Board said he relied on the wrong cases. The Board said the cases he relied on were distinguishable because, “most involved rules addressing conduct that is reasonably associated with actions that fall outside the Act’s protection, such as conduct that is malicious, abusive, or unlawful.”  But not this policy apparently.

Here is what the Board said:  “Contrary to the judge, we find employees would reasonably construe this rule as one that prohibits Section 7 activity.”  Really, which employees are those?  But let’s not jump to conclusions. Let’s see why the Board thinks this.  Here is why “by its terms, the broad prohibition against making statements that “damage the Company, defame any individual or damage any person’s reputation” clearly encompasses concerted communications protesting the Respondent’s treatment of its employees.”

What????.  Did the NLRB really just say that Section 7 protects defamation?  Defaming someone is a tort. You can get sued for it. You can be required to pay damages for it. It is malicious. It is abusive. And it is unlawful.  See the problem here?

But that is not the end of this little fairy tale, nightmare, whatever.

The Board then had the . . . nerve (that’s not what I started to say but we will go with that so my editor does not fall out of her chair) to say, “In contrast, the Respondent’s rule does not present accompanying language that would tend to restrict its application.  It therefore allows employees to reasonably assume that it pertains to — among other things — certain protected concerted actives such as communications that are critical of the Respondent’s treatment of its employees.”

Did I miss something here or is the Board suggesting that all of this may have been okay if only Costco had included a savings clause.  You know what a savings clause is right, some simple like “we won’t enforce this in a way that interferes with your Section 7 rights.”  Simple enough, except.  I’m sure I saw something in one or two of those GC Memos that said savings clauses were not enough.  Oh yea, that’s right.  Didn’t the GC say it is not enough to include a “savings clause” in the social media policy that attempts to cure ambiguities and ensure employees understand that the policy does not apply to Section 7 activity?

Instead, he found in several instances that employees will not understand the savings clause to mean that protected Section 7 activities are permitted.  In fact, take a look at  page 8 of the Jan. 24 GC Memo and pages 9,12 and 14 of the  May 30 GC Memo. On second thought, don’t look. It might make your head explode.

Can you tell I’m a bit upset?  Let’s hope Costco appeals this thing and a Court finally steps in to rein this agency back in.

YOU’RE TAKING WHAT? The EEOC, the ADA and Tests for Legal Drugs.

Anyone who has heard me speak about the Americans with Disabilities Act knows my take on the issue of drug testing and alcohol testing of current employees. Over and over and over I have said that you can test for illegal drugs whenever you want but you are limited on when you can test an employee for alcohol.  The EEOC just reminded us that there are limits on when you can test for legal drugs, too.

Why, you might ask, is this true?

Well, a rule under the ADA says you can only conduct a medical examination of a current employee if the inquiry is “job related and consistent with business necessity.”  It says so right in the EEOC’s Enforcement Guidance on Disability Related Inquiries and Medical Examinations.

A “medical examination,” according to the guidance, “is a procedure or test that seeks information about an individual’s physical or mental impairments or health.”  That includes “blood, urine, and breath analyses to check for alcohol use; ….”  And then the guidance goes on to say: There are a number of procedures and tests employers may require that generally are not considered medical examinations, including:

  • Tests to determine the current illegal use of drugs ….”

And while it does not mention that a medical examination also includes a test for legal drugs taken in accordance with a prescription, that seems obvious to me and probably to you, too.  Come on, if you can’t test for alcohol without a reason, why on Earth would you be able to test for prescription medication?

This all seems pretty simple to me. In fact it seems so simple that I often make a bit of a joke when I am speaking on the topic:

Me:  “You can test for illegal drugs whenever you want but you have to have a business reason to test for alcohol.”

 Participant:  “Why is that?”

Me:  “I’m not sure, but could it be that Congress is full of drinkers and not drug users?”

Works better when I am actually speaking, I realize, but it usually gets a laugh or two.

Still,  this whole issue of drug testing is no laughing matter. And it seems I may have been wrong about how simple this is. Or maybe I just didn’t take into consideration the fact that when we are talking about drug testing we are talking about testing for “illegal drugs,” not legal drugs being taken according to a prescription.

Last week Dura Automotive Systems entered into a settlement agreement with the EEOC to pay $750,000 to settle an ADA suit.  According to the EEOC press release:

Dura Automotive Systems, Inc. tested all of its Lawrenceburg, Tenn., plant employees in May 2007 for 12 substances, including certain legally prescribed drugs, in violation of the ADA.  Five of the drugs tested for were illegal controlled substances, the EEOC said, but the other seven were legal medications that were lawfully prescribed for the individuals taking them.

Further, the EEOC alleged that Dura required those employees who tested positive for legally prescribed medications to disclose the medical conditions for which they were taking prescription medications, and made it a condition of employment that the employees cease taking their prescription medications, without any evidence that the medications were affecting the employees’ job performances.  According to the EEOC, Dura then suspended employees until they stopped taking their prescription medications, and fired those who were unable to perform their job duties without the benefit of their prescription medications.  Moreover, Dura conducted the drug tests in such a manner as to disclose to its entire work force the identities of those who tested positive.

Oops.  Can’t do that.

So where did Dura Automotive trip up?  Well, you can test for legal drugs but only if the test is job related and justified by business necessity.  That is kind of hard to prove when you test all of your employees.  Next, if an employee has a prescription for a legal drug, you can’t ask them what underlying medical condition they have that necessitates taking the drug.  That would be an impermissible medical inquiry under the ADA,  Also, you can’t  make an employee stop taking a legally prescribed medication unless you can prove that taking the drug actually affects the employee’s ability to do their job. And finally you can’t conduct your drug test in such a way that everyone knows everyone else’s results.  Disclosing confidential medical information is a violation of the ADA too.

So before you decide to test your entire workforce for drugs, why don’t you give one of the labor lawyers at WNJ a call? It will probably cost you less than $750,000.