Construction Today - December 1, 2004
While certainly significant, OSHA standards are not the beginning and end of workplace safety law. In order to effectively minimize exposure to liability, contractors should possess the ability to recognize potential issues arising under a wide variety of federal and state laws. As illustrated by the hypothetical below, many legal issues surrounding workplace safety are far from obvious.
Charlie, who has been one of your best laborers for years, drove a backhoe into a ditch. Although no one was hurt, the backhoe was "totaled. " In accordance with your company's substance abuse policy, Charlie was tested immediately. After Charlie's test result came back positive for cocaine, he asked for a second chance and promised to seek treatment at a rehab center.
Do you have the right to test Charlie under these circumstances? Probably yes. Employees often claim that drug and alcohol tests violate their privacy rights. While under some circumstances employees have successfully challenged random drug testing programs, reasonable suspicion and post accident drug testing is usually permitted. Also, courts have held that the manner in which a drug test is conducted may also give rise to a privacy lawsuit. For example, watching an employee produce a urine sample likely constitutes an unwarranted invasion of privacy. Clearly, one of the best ways to avoid privacy claims is to have employees sign an acknowledgment form indicating that they have received a copy of the company's substance abuse policy, that they understand the consequences for violating it, and that they consent to testing.
Are you buying yourself a lawsuit if you fire Charlie? Probably no. Although drug addiction and alcoholism are usually considered covered disabilities under the Americans with Disabilities Act ("ADA"), the ADA's coverage specifically excludes current users of illegal drugs. This means that when an employee's drug test comes back positive, you may tire that employee without violating the ADA. While many employers choose to give their employees an opportunity to pursue rehabilitation, there is no law that requires you to offer rehabilitation in lieu of immediate discharge. Nevertheless, Charlie may have a good reason to sue if your company's collective bargaining agreement or substance abuse policy calls for rehabilitation or if you have treated Charlie differently from other employees (such as offering rehabilitation to another employee whose test came back positive).
After the "Charlie incident." at the suggestion of one of your project managers, you establish an employee safety committee to give employees a voice in workplace .safety issues such as drug testing. The committee and management go back and forth with numerous proposals and counter proposals. Ultimately, a new workplace safely policy is adopted.
Many contractors have established employee committees to deal with safety and a wide variety of other workplace issues. However, few contractors are aware of the fact that such committees may be viewed as illegal employer dominated unions under the federal labor law. This problem is especially prevalent among non union contractors.
Under the labor law, an employer commits an unfair labor practice whenever it dominates any "labor organization." The term "labor organization" is quite broad, and includes any organization in which employees participate and "deal with" management concerning wages, hours, or other terms and conditions of employment. Courts have ruled that "dealing with" occurs where there is a "back and forth" of proposals and counter proposals. On the other hand, where employee committees truly possess the authority to make and implement decisions, even if subject to the review of management, no "dealing with" will be found because the committee is acting as a delegate of management.
At a minimum, contractors contemplating employee committees should take the following steps: (1) do not provide extra pay or benefits to committee members; (2) allow the committee to establish its own procedures; and (3) do not pick employees to serve as committee members. Ultimately, however, the question of whether an employee committee constitutes an employer dominated union must be answered on a case by case basis.
Two years after being fired, Charlie applies to be rehired. Along with his application, he .submits levers from his pastor about his active church participation and from a drug counselor about his regular attendance at meetings and his recovery.
On December 2, 2003, in Raytheon v. Hernandez, the Supreme Court of the United States decided a case presenting an identical factual scenario. In that case, the employee alleged that he had been intentionally discriminated against in violation of the ADA, arguing that the employer rejected his application because of his record of drug addiction and because he was regarded as being a drug addict. Although the Supreme Court recognized that the employee was covered under the ADA, it ruled that the employer had a legitimate, non discriminatory reason to reject the employee's application. As such, the Court's decision leaves little doubt that an employer does not commit intentional discrimination where it refuses to rehire an individual who had been terminated for illegal drug use.
Significantly, however, discrimination need not be intentional to be unlawful. Courts have held that facially neutral policies that fall more heavily on protected groups may be unlawful. In Raytheon, the Court specifically left open the question of whether a no rehire policy constitutes unintentional discrimination in violation of federal law. Turning to our hypothetical, this means the decision to refuse to rehire Charlie because of his prior drug use carries a significant risk of liability for unintentional discrimination.
Jonathan Landesman is an attorney at Cohen, Seglias, Pallas, Greenhall & Furman, P.C., one of the leading construction law firms in the Mid-Atlantic Region. Jonathan provides representation to contractors and construction industry firms in virtually all aspects of labor and employment law. His writings regularly appear in national publications, and he teaches graduate and undergraduate level courses in labor law.