As we approach Thanksgiving, there are many reasons to be thankful. Unfortunately, as events continue to occur in America as well as around the world, there are too many worrisome issues that confront us. From an employment perspective, I would like to address several issues that continue to cause concern for employers.
Drug use on the job. I recently posted about alcoholism and how employers can deal with employees while reducing their risk of exposure. On November 3, 2015, in Maryland, the EEOC filed a lawsuit against Randstad, US, LP alleging violations of the Americans with Disabilities Act as the result of Randstad's refusal to hire an applicant who was using methadone to treat her heroin addiction. The lawsuit claims that April Cox is a recovering heroin addict who enrolled in a methadone treatment program in 2011. As part of her treatment, she uses methadone on a daily basis, and undergoes regular counseling and drug screenings. She applied for a job at Randstad, and told them that she was enrolled in a methadone treatment program when she was advised she had to submit to a pre-employment drug test. One of the managers told her that “I'm sure we don't hire people on methadone, but I will contact my supervisor.” The treatment center provided proof of her enrollment in the program, and the only restrictions placed on her were that she could not be employed as an airline pilot or truck driver. The job she applied for was as a laborer. Randstad never asked her to take the drug test and she was not hired, allegedly as the result of her methadone usage. In the lawsuit, the EEOC claims that there were various violations of the ADA, including that she is has a disability since she is a recovering substance abuser, she has a record of a disability, and that she was regarded as disabled as the result of her methadone treatment. This is at least the third lawsuit filed by the EEOC as the result of allegations of disability based on methadone use, with the two prior suits settling for $37,500 and $85,000, both based on the refusal to hire. Over the years, the EEOC has settled numerous other cases alleging violations of the ADA as the result of the use of different medications used to treat pain, bi-polar disorder, epilepsy and other illnesses.
Practice pointer. The legal use of prescription medication is not an automatic disqualification from being hired for or being terminated from a job. Any drug testing program should ensure that the ADA is not violated, including determining the essential functions of the job, using a Medical Review Officer to review any positive result, determining if there are any reasonable accommodations that can be made, and not automatically refusing to hire/terminate based solely on a positive drug test due to the use of prescription medication.
More jail time for failure to pay proper wages. Once again, the owner of a business is going to jail for failure to properly pay his employees. According to Huffpost Business, Abdul Jamil Khokhar, the owner of several Papa John's franchises in New York City, will serve 60 days in jail and pay $230,000 in restitution to the workers. Mr. Khokhar pled guilty to failure to pay wages under New York State law and his company pled guilty to falsifying business records. In a concurrent investigation, the Department of Labor previously settled their claims by Khokhar agreeing to pay an additional $230,000 in damages and $50,000 in civil penalties. According to the article, New York and the Labor Department have settled other claims, with four other Papa John's franchisees, with the employers paying $500,000 to 250 workers at 9 restaurants. The Attorney General's office has also obtained a judgment against two other Papa John's franchises for nearly $3,000,000.
Practice pointer. Violations of various federal, state and city wage laws continue to result in litigation in Birmingham, in Alabama and around the country. With the City of Birmingham adopting a new ordinance setting the minimum wage to be paid in Birmingham at $8.50/hour effective July 1, 2016, it is reasonable to expect even more litigation. There has been some talk that the state legislature may attempt to enact a law invalidating Birmingham's ordinance and that there may be lawsuits filed challenging the law. Stay tuned.
Happy employees make better employees. Suzanne Lucas, with Inc.com, recently published an article titled: “This Holiday Perk Could Last Year-Round”. The premise of her article, which applies mostly to small and medium-sized employers, is that allowing employees to ship packages to the office is a major benefit to employees 365 days a year. Ms. Lucas believes permitting employees to ship their personal packages to the office is good because, among other things, “Everyone is shopping on the internet these days…Porch pirates are a real thing [people steal things left on porches]…Gone are the days of the stay-at-home spouse [no one is home to receive the package or sign for the package]…Shopping is going to happen [more people are shopping on line and avoiding the malls].”
Practice pointer. Numerous surveys show that the little things that can be done for employees are often the most appreciated. If your company can logistically handle employees shipping their purchases to the office, it reduces their stress, makes it more convenient, and raises their morale. Ms. Lucas concludes her article by noting that, “This is a gift that you can start this holiday season, but there's no reason this can't be a year-round perk. Keep your staff at their desks and their packages safe from theft. That's a win-win situation.”