Federal Judge Halts OSHA Rule on Post Accident Drug Testing

Federal Judge David Russell, District Court for the Western District of Oklahoma, on Tuesday July 11 helped the Occupational Safety and Health Administration (OSHA) drive a stake through the heart of OSHA’s much maligned injury and illness reporting rule while the agency considers whether to undo all or part of the regulation. This now barred rule did more to slow down, and to some extent halt, post-accident drug testing by employers across the United States for fear of an OSHA retaliation charge and finds. The case is the National Association of Home Builders of the United States et al. v. Perez et al.

 

Judge Russell issued a one-page order granting a request by OSHA to stay the case, which the agency filed Monday, July 10th arguing that it needed the time to determine whether to “reconsider, revise or remove portions of the rule” at issue. He ordered OSHA to submit status reports every 90 days to keep the court apprised of the agency’s progress with respect to the proposed rulemaking the agency outlined in its motion.

 

OSHA’s new rule, which was finalized last year and took effect on Jan. 1, after a Texas Federal District Judge refused to enjoin it in November 2016, required employers to submit electronically information about workplace injuries and illnesses for a publicly available database. Many labeled its OSHA’s attempt to shame employers into compliance, as well as foster litigation.  The rule also required employers to establish reporting procedures for injuries and illnesses and barred retaliation against workers who reported such incidents. OHSA in its comments to the new rule spotlighted suspicionless post-accident drug testing as grounds for it to issue a retaliation citation.

 

In January 2017, the National Association of Home Builders of the United States, and others, filed a Federal Court Complaint in Oklahoma claiming the database rule exceeds OSHA’s record keeping authority and violated the First Amendment by compelling businesses to give up too much private information.

 

On June 28 OSHA published a notice in the federal register that both proposed a five-month delay to the July 1 deadline for certain employers to submit the first batch of information required under the rule and questioned whether additional portions of the rule would be subject to changes. OHSA stated in its filing that allowing the parties to proceed with motions for summary judgment presented the risk that OHSA would have to brief and the court would have to consider issues that may be rendered moot by the agency’s reconsideration of the regulation.

 

In its motion filed on Monday, the Agency stated as follows: “OSHA has confirmed that it will propose additional rulemaking that could directly affect the scope of the rule and therefore the claims at issue in this litigation… Given OSHA’s decision to propose rulemaking that could affect the requirements of the rule, there is good cause for granting the government’s request to stay this case. Staying this litigation would conserve judicial resources because additional rulemaking could eliminate or simplify some of the issues in dispute.”

 

Common Sense Counsel: Employers without fear of OSHA oversight or fines can, and should, immediately reinstate post-accident drug testing. Of course, having a legally compliant program in accordance with State Laws is critical to successful Worker’s Compensation Disqualification for a positive drug testing result, discharge decisions, privacy concerns, and receiving the worker’s compensation premium discount from your insurer or fund.

 

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 drafts state compliant drug-free workplace programs for employers in all 50 states. He can be contacted at teden@constangy.com or 334-246-2901 with blog at www.alabamaatwork.com with link to order.

 

Massachusetts Supreme Court Takes Bite out of Employer Blanket Marijuana Prohibition

Cristina Barbuto, was hired into an entry level position by Advantage Sales and Marketing in the late summer of 2014. Advantage Sales and Marketing, LLC (ASM) claims to be one of North America’s leading sales and marketing agencies specializing in outsourced sales and merchandising representatives to producers of food products and consumer goods.

After hire an ASM representative left a message for Barbuto stating that she was required to take a mandatory drug test. Barbuto responded to her supervisor that she would test positive for marijuana, explaining that she suffers from Crohn’s disease, a debilitating gastrointestinal condition. She went on to explain that she was a qualifying medical Marijuana Cardholder under Massachusetts law and that her physician had provided her with a written certification that allowed her to use marijuana for medicinal purposes. Barbuto assured her supervisor that she did not use marijuana daily and would not consume it before work or at work. Barbuto went on to explain that as a result of her Crohn’s disease, and her irritable bowel syndrome, she has “little or no appetite,” and finds it difficult to maintain a healthy weight and using marijuana two or three time a week after work had helped her gain fifteen pounds and maintain a healthy weight.

In response, the supervisor told Barbuto that her medicinal use of marijuana “should not be a problem,” but that he would confirm this with others at ASM. The supervisor later telephoned Barbuto and confirmed that her lawful medical use of marijuana would not be an issue with the company.

On September 5, 2014, Barbuto was subject to a ASM’s mandatory urine drug test.  A few days latter she went to an ASM training program, where she was given a uniform and assigned a supermarket location where she would promote the products of ASM’s customers. On September 12 Barbuto completed her first day of work, but that evening ASM’s Human Resources representative informed Barbuto that she was terminated for testing positive for marijuana.  The HR representative told Barbuto that ASM did not care if Barbuto used marijuana to treat her medical condition because “we follow federal law, not state law.”

Barbuto filed a verified charge of discrimination against ASM and the HR representative with the Massachusetts Commission Against Discrimination, and later filed suit in the Massachusetts Superior Court, alleging handicap discrimination under Massachusetts law, a private right of action under the Massachusetts Medical Marijuana Act and various other state law claims which were dismissed, except for an invasion of privacy claim. Barbuto then appealed directly to the Massachusetts Supreme Court.

On July 17 the Massachusetts Supreme Court ruled in favor of Barbuto, holding as follows: “In 2012, Massachusetts voters approved the initiative petition entitled, An Act for the humanitarian medical use of marijuana, St. 2012, c. 369 (medical marijuana act or act), whose stated purpose is “that there should be no punishment under state law for qualifying patients . . . for the medical use of marijuana.”Id. at § 1. The issue on appeal is whether a qualifying patient who has been terminated from her employment because she tested positive for marijuana as a result of her lawful medical use of marijuana has a civil remedy against her employer. We conclude that the plaintiff may seek a remedy through claims of handicap discrimination in violation of G. L. c. 151B, and therefore reverse the dismissal of the plaintiff’s discrimination claims. We also conclude that there is no implied statutory private cause of action under the medical marijuana act and that the plaintiff has failed to state a claim for wrongful termination in violation of public policy, and therefore affirm the dismissal of those claims.”

Three Employer Safe Harbors for Marijuana Prohibitions left open by the Massachusetts Supreme Court as presenting possible undue hardships for an employer:

  1.  “For instance, an employer might prove that the continued use of medical marijuana would impair the employee’s performance of her work or pose an “unacceptably significant” safety risk to the public, the employee, or her fellow employees.”
  2.   “Alternatively, an undue hardship might be shown if the employer can prove that the use of marijuana by an employee would violate an employer’s contractual or statutory obligation, and thereby jeopardize its ability to perform its business. We recognize that transportation employers are subject to regulations promulgated by the United States Department of Transportation that prohibit any safety‐sensitive employee subject to drug testing under the department’s drug testing regulations from using marijuana.”
  3.     “In addition, we recognize that Federal government contractors and the recipients of Federal grants are obligated to comply with the Drug Free Workplace Act, 41 U.S.C. §§ 8102(a), 8103(a) (2012), which requires them to make “a good faith effort . . . to maintain a drug-free workplace,” and prohibits any employee from using a controlled substance in the workplace.”

Common Sense Counsel:  Marijuana Proofing your Drug Free Workplace Policy just got more complicated. But taking these steps now will reduce the risk of a successful employee challenge:

  • Update job descriptions to include “safety sensitive position” and the “ability to work in a constant state of alertness and safe manner” as an essential job function;
  • Update the drug-free workplace policy to bring it into compliance with state laws and to include a “pre-duty impairing effects” disclosure language as part of a “safety rule”.
  •  Treat all impairing effect medications equally to avoid a medical marijuana discrimination/not compassionate/handicap discrimination claim;
  • Engage in an interactive discussion with MM Cardholders in the states with sticky medical marijuana laws, like Massachusetts;
  • Make employees aware of Marijuana drug free contractual commitments, gate entry requirements and restrictions that would adversely affect your company’s right to do business; and
  • Make it all about safety in your policy, written documentation, training and evaluation of your workplace concerns.

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 drafts state compliant drug-free workplace programs for employers in all 50 states. He can be contacted at teden@constangy.com or 334-246-2901 with blog at www.alabamaatwork.com with link to decision.

Spokeo Decision Saves Another Employer

Recently, a federal judge in Minnesota dismissed a class action lawsuit against Beverly Health and Rehabilitation Services citing Supreme Court ruling in Spokeo v. Robins. The plaintiff filed suit claiming she was not told the company was conducting a background check, she was not given information about who was running the check, and that there was no clear and conspicuous disclosure as is required by FCRA. The company did ask her to complete a background check authorization form, which asked for the usual information and if she had a criminal history, they did, in fact, offer her a conditional job offer. The judge pointed to the Spokeo decision to say the plaintiff could not show sufficient concrete injury and the case was dismissed.

The company did ask her to complete a background check authorization form, which asked for the usual information and if she had a criminal history, they did, in fact, offer her a conditional job offer. The judge pointed to the Spokeo decision to say the plaintiff could not show sufficient concrete injury and the case was dismissed.

While the judge ruled for the employer, it provides another example of a company being sued for not following guidelines provided by FCRA. Remember, an employee must be notified that a background screening will be conducted and there must be a clear and conspicuous disclosure form. If you have any questions about how to remain compliant as you screen applicants and employees, give us a call at 800.230.2991

Sexual Abuse in USA Gymnastics

Over the past year, I’ve written several posts about sexual abuse in schools.  There’s no reason a school should hire someone who hasn’t had their background screened, to work with children. The same goes for anyone, in any industry, who works with kids. Giving someone that kind of responsibility, with that kind of authority, requires vetting. This includes any organization charged with the care of children.

In late winter, the story broke about how young gymnasts were abused by a USA Gymnastics doctor, Dr. Larry Nassar. Since the first story was published, hundreds of young women have come forward to claim sexual abuse since Nassar joined the sports governing body in 1996. The President of USA Gymnastics has since resigned and Dr. Nassar is now in jail facing criminal charges. Another institution that was charged with shaping children has fallen from grace.

Background checks can’t always prevent the first instance of abuse, but screening can certainly prevent someone with a history of abuse, of any kind, from having access to a group of children. As I’ve written before, the stakes are too high to not take every measure to prevent this kind of thing in your school, church, sports league or extracurricular activity.

Read the lastest story regarding USA Gymnastics in People Magazine. 

If you’d like to find out more about background screening for your organization, please give us a call at 800.230.2991.

Sexual Misconduct: Stop “Passing the Trash”

For decades, when teachers were removed from schools for sexual misconduct they were allowed to quietly move on to the next school and resume their teaching careers. It is a practice so common it was referred to as “passing the trash.”

This month Choate Rosemary Hall, an elite Connecticut boarding school, released a report that described how men at the school who were accused of sexually abusing students were allowed to continue teaching at the school. Two men may have abused students at other schools.

This report comes after articles have appeared all over the world documenting cases where teachers have abused students and then moved on to do the same elsewhere. How do we stop this from happening? One of the best ways is background screening. It doesn’t stop the first case, but it can make the first case, the last case.

Every teacher, administrator, coach, and volunteer should be screened for previous criminal or sexual misconduct. The screen should be based on real-time data and not only national and local criminal records, but international records as well. It bears repeating often that caring for someone else’s children is a huge responsibility and must not be taken lightly.

WOLFE has experience helping schools create a safe learning environment for students. If you have questions, give us a call at 800.230.2991.

Read more about the Choate report and “Passing the Trash” in the New York Times here.

Your Applicant’s Resume: Fact or Fiction?

Recently a group of reporters and editors from the student newspaper at a Pittsburg high school found the credentials of their new high school’s head principal weren’t up to par. Their weeks-long investigation has earned the students praise in the national media and has caused the hiring committee some embarrassment.

In the student’s research, they discovered the facts in the new principal’s background didn’t quite add up. The biggest red flag, the website for Corllins University where she had earned both her master’s and doctorate degrees years ago didn’t work. The students found no evidence it was an accredited university. In fact, several articles suggested that Corllins University is a diploma mill.

This wasn’t the only indication of falsehood. In a conference call, the applicant had presented conflicting dates, incomplete answers, and inconsistencies in her responses. Her degrees and much of her work as an education consultant, it turns out, were pure fiction.

Some Candidates Lie

This doesn’t surprise anyone in the HR world. We’ve referenced, more than once, a CareerBuilder Survey of more than 2,500 hiring managers. It showed 56% of them have caught job candidates lying on their resumes. Those are just the ones that got caught. I’m sure many of you have similar stories.

WOLFE’s investigative verification team has assisted clients dozens of times in finding falsified or forged diploma’s. Make sure the company you hire to investigate candidates has the experience to verify past employment and education. For starters, ask the company what their verification rate is. Ours is 95%.  Mush lower and many credentials and past employers may remain question marks long into employment. It’s an expensive mistake to make. If you have questions about verification, criminal history or any aspect of the background screening process, call us at 800.230.2991. We’re happy to help.

Do Your Hiring Guidelines Violate the Age Discrimination in Employment Act?

Discrimination against older workers is illegal.  Including an age range or discouraging older workers in a job posting is blatant discrimination and I doubt any of you would do that. Yet there are companies that use hiring guidelines that show a clear preference for younger candidates and these too can be considered a violation of the Age Discrimination in Employment Act. 

R.J. Reynolds is a good example. The company faces a lawsuit for proving recruiters with guidelines for a regional sales job, stating ideal candidates are two to three years out of college and suggested applicants with eight to ten years of experience be avoided.

A recruiter gave documents with these hiring guidelines to lawyers at the San Francisco firm Altshuler Berzon, which specializes in employment law. Before long, other rejected applicants joined the suit. This case has bounced around the lower courts and is now waiting to be taken up by the Supreme Court. With people living longer lives and expecting to work later in life, this issue isn’t going away anytime soon. Until then, make sure you aren’t using discriminatory language in your onboarding process.

Are You Mishandling Consumer Information?


Have you heard of the Disposal Rule? If you handle applicant data, especially consumer reports from background screens, you should know that how you dispose of such information matters…a lot. If you handle sensitive information, it’s your responsibility to protect the privacy of the applicant and reduce the risk of fraud and identity theft.

The Disposal Rule

Enforced by the Federal Trade Commission, the rule requires the proper disposal of information in consumer reports and data to protect against “unauthorized access to or use of the information.”

However, the Rule does not spell out how such information should be disposed of.  Rather, it allows people who handle the information to choose the best method based on cost, effectiveness, and the sensitivity of the information. Reasonable methods include:

  • burning, pulverizing, or shredding papers containing consumer report information so that the information cannot be read or reconstructed;
  • destroying or erasing electronic files or media containing consumer report information so that the information cannot be read or reconstructed;
  • hiring a document destruction contractor to dispose of material specifically identified as consumer report information consistent with the Rule.

If you hire a document company, your due diligence should include:

  • reviewing an independent audit of a disposal company’s operations and/or its compliance with the Rule;
  • obtaining information about the disposal company from several references;
  • requiring that the disposal company be certified by a recognized trade association;
  • reviewing and evaluating the disposal company’s information security policies or procedures.

The FTC’s Disposal Rule became effective June 1, 2005. It was published in the Federal Register on November 24, 2004 [69 Fed. Reg. 68,690], and is available at ftc.gov/os/2004/11/041118disposalfrn.pdf. Read more about the Disposal Rule here.

Still confused about the Disposal Rule?

Wolfe Background Screening experts are happy to answer your questions about handling consumer information. Give them a call at 800.230.2991.

Courses you might be interested in: Working with the Data Protection Act or  HIPAA: Your Obligations Under the Privacy Rule

How a Hiring Technicality Can Land Companies in Court

A slew of lawsuits has been filed lately against companies accused of violating FCRA in their hiring processes. The most recent company to join that list is Starbucks Corp. for a violation in its adverse action process. A Colorado man named Jonathan Rosario filed a class action lawsuit against Starbucks after being denied a job based on an inaccurate background screening report. According to Rosario, the report contained felony and misdemeanor criminal records from Pennsylvania. Rosario, it turns out, has never even visited Pennsylvania.

As a background screening partner, we see not one but two problems with Starbucks’ background screening process. The first is, Starbucks was making a hiring decision based on records that weren’t accurate.  A good background screening provider verifies every record to make sure a criminal or disqualifying record isn’t a case of mistaken identity. Both the company and the client have a stake in making sure all background information is accurate.

The second problem is in the company’s Adverse Action process. Rosario received a letter stating that his background report had eliminated him from consideration, but he had already been disqualified from the employment process.

When Rosario used the Starbucks’ dispute system to provide a corrected report, the company refused to revisit the decision. FCRA is clear on this issue: A candidate must be given time to correct any inaccurate information before they are disqualified from a job. 

The Fair Credit Reporting Act (FCRA) was originally enacted in 1970 to protect the privacy of individuals’ personal information. Only recently have so many employers been hit with lawsuits for allegedly violating the act. It’s usually a hiring technicality, often in the background screen, that lands these big companies in court. Whole Foods, Dollar General, and Panera Bread have all been sued for violating FCRA.

Some things to remember about FCRA:

  • An employer must give notice that an applicant’s background will be investigated and ask for authorization in a way that’s “clear and conspicuous” so it stands out from the rest of a job application. In fact, an online application that is one document, without a separate notice and authorization, is illegal. The notice and authorization must stand out from the rest of the application.
  • An employer must notify a candidate if something in their background is considered “disqualifying” before actually disqualifying them. The applicant should be given time to fix any errors in their consumer report before they are officially disqualified.

Companies are Vulnerable and the Penalties Can be Steep

Though the FCRA guidelines are nothing new, there is a recent trend for lawsuits against companies for violating the guidelines. Here are ways for employers to mitigate the risks:

Hand-Vetted Records

This is important and should not be overlooked. Wolfe screeners verify every record to make sure it doesn’t belong to someone else with the same name, as was the case with Rosario. We can also take on all the adverse action paperwork to make sure every step of the background screening process is compliant with FCRA.

Wolfe’s Adverse Action Service for Peace of Mind

Many background screening clients hire us to handle their adverse action program too. It works like this: Once a client notifies us that there is disqualifying information in the background screening report, we verify that it does indeed belong to the applicant.  We then send an Adverse Action letter by email and snail mail, giving the applicant the legally recommended time to correct or dispute any errors. Clients are kept in the loop on any disputes that arise.

If you have questions about background screening or would like to add Adverse Action to your current service, give us a call at 800.230.2991 or fill out our contact form and we’ll get back to you. 

 
 

Is Drug Addiction and Abuse Effecting Your Bottom Line?

What are Illicit Drugs

It’s one of those “ticking time bombs.” If you have substance abusers in your employ, it truly is only a matter of time before you see the impact on your business. And it’s not as uncommon as you might think – 70% of illicit drug users are holding down a full-time job. Additionally, an even higher percentage of alcoholics and binge drinkers are on someone’s payroll. Substance abuse is not always easy to detect and, unfortunately, oftentimes when it is, the issue is ignored due to lack of expertise in how to deal with it.

The most commonly used illicit drugs by workers on the job are marijuana and cocaine. In recent years, the abuse of prescription drugs such as Xanax, Adderall, and Oxycodone is also on the rise (we’ll revisit this growing trend in a future post). Most people recognize that cocaine is highly addictive and dangerous in the workplace, but marijuana, often viewed as a “safe” drug, still presents significant liabilities for employers. Emergency room visits related to marijuana use increased 59% between 2006 and 2010 and are second only to cocaine among accidents involving individuals abusing illicit drugs. Truth is, there is no safe drug use in the workplace. Any substance that impairs judgment or alters perception increases risk of injury, decreased production and loss of revenue.

Why Do Individuals use Illicit Drugs

The appeal of illicit drug use is for the physical and emotional reactions they deliver to the user. Feelings of happiness, mild hallucinations, euphoria, self-confidence and sociability are all effects chased by casual and frequent users of these drugs. At other times, drug abusers are trying to mask a deeper emotional void such as a feeling of emptiness or loneliness or to self-medicate as an escape from stress or anxiety. An individual’s reasons for using and abusing illicit drugs are their own. When done during work hours, however, those reasons become your concern.

Impact of Illicit Drug Abuse on the Workplace

Each year drug abuse and addiction cost American companies $81 billion. On average, substance abusers cost employers $13,000 a year. They are 3 times more likely to have an accident while at work and 5 times more likely to file a workers’ compensation claim. A national study on alcohol-related occupational injuries reported that about 16% of emergency room patients injured at work have alcohol in their system. The costs of having illicit drug users on your payroll are spread across the organization. Their related problem areas include:

* Chronic Absenteeism

* Loss of Production and Efficiency

* Poor Decision Making

* Impaired Judgement

* Theft

* Decreased Morale Among Co-Workers

* Higher Turnover / Cost of Replacement

* Conflict with Co-Workers and Supervisors

* Sale of Illegal Drugs to Other Employees

Industries with Highest Illicit Drug Use

With an estimated 14.8 million drug abusers (more than 10% of the US workforce) having full-time jobs, chances are high that someone in your organization has a drug problem. Substance abuse has no demographic boundaries and can affect individuals from the executive suite to the mailroom. The industries most commonly affected are listed in the table below:
Industry Current Illicit Drug Use % Current Heavy Alcohol Use %

Construction 11.6 16.5

Mining 5.0 17.5

Hospitality &

Food Service 19.1 11.8

Retail 10.3 9.0

Manufacturing 7.4 9.7

Utilities 6.1 10.3

Arts &

Entertainment 13.7 11.5

Real Estate 10.9 8.5


Industry Current Illicit Drug Use % Current Heavy Alcohol Use %
Construction 11.6 16.5
Mining 5.0 17.5
Hospitality & Food Service 19.1 11.8
Retail 10.3 9.0
Manufacturing 7.4 9.7
Utilities 6.1 10.3
Arts & Entertainment 13.7 11.5
Real Estate 10.9 8.5

Minimizing Your Risk

To protect your employees, your clients and your business, it is imperative to have a drug-free workplace policy and program in place. Such initiatives have proven to increase morale, reduce workplace accidents, injuries, and fatalities, lower employee theft rates, increase productivity and lower employee turnover. When designing and implementing a program for your business consider including these elements:

* A Drug-Free Workplace Policy: A written document distributed to all employees that sets the expectations and tone for your organization’s drug-free program.

* Employee Training: A recurring training program for both employees and supervisors to provide both knowledge and awareness of the risks, warning signs and company’s policies regarding substance abuse in the workplace.

* An Employee Assistance Program (EAP): An external resource made available for employees who test positively for drugs, ask for assistance or are referred by their manager for a possible problem with drugs or alcohol.

* Drug Testing: To identify drug users and deter “would-be” drug users among employees in the workplace.

Let us know how we can assist you with the development and implementation of your Drug-Free Workplace Program. From drug testing solutions to online training courses and build awareness, our resources can assist in minimizing your risk while taking a weight off your shoulders.

Course Links:

DOT Reasonable Suspicion Training

Drug-Free Workplace Employee Training

Substance Abuse in the Workplace: What Supervisors Need to Know