Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Employment law BELIEVE IT OR NOT!

Posted in Discrimination, Drug Testing, Pregnancy

Oddities, weirdness, and the strange and unusual from the world of employment law.

I thought only elephants had two-year pregnancies. As I’ve discussed here before, “pregnancy” for purposes of the federal Pregnancy Discrimination Act includes a lot of things besides the actual nine months of physical gestation. Arguably, it includes the period that a woman may be receiving in vitro fertilization. It includes miscarriage, or even an elective abortion. At least one court has found that it includes lactation, and the EEOC agrees.Ripleys.256px-Odditorium_Hollywood_0045

Now we have a recent decision from a federal court in New York, which says that “legal pregnancy” (as opposed to biological pregnancy) also encompasses roughly the first four months after the baby is born. If an employer discriminates against the employee during that four-month “grace period,” then a plaintiff may have a valid pregnancy discrimination claim even though she hasn’t been biologically pregnant for a while. (This really makes sense when you think about it, especially since the first three of the four months may be maternity leave.)

When you add up the period that might be required to conceive a child, the biological pregnancy, and the first four months of the child’s life, I figure you end up with about a two-year period of “legal pregnancy.” If not more, especially if lactation is included.

Believe it or not!

If marijuana is legal, then how can you get fired for buying marijuana? The day before marijuana sales became legal in the state of Washington, Spokane security guard Michael Kelly Boyer put on his tie-dyed tee, went to the Green Leaf with his sleeping bag, and camped out in front of the store so that he’d be first in the city to purchase the newly-legal weed. While he waited, he was interviewed by a local TV station. His employers saw his interview and allegedly fired him. (They deny it – one employer said he was still employed, and the other said they’d only asked him to have a drug test the next day. Probably knew he wouldn’t pass.)

Constangy’s award-winning employment law app is now available for Android devices! Find out what the  iPhone users have been shouting about — employment law checklists, wage-hour and workers’ comp calculators, contact information, and of course all of our firms’s publications, including this blog. Best of all, the app is free.

Even if state law allows marijuana use, federal law still prohibits it. In fact, federal law prohibits even the use of medical marijuana (and there was no indication that Mr. Boyer wanted his pot for medical reasons). So, if Mr. Boyer was fired, the firing was probably legal. But this is a very hot issue right now – keep particular watch on the case of Coats v. Dish Network, which is pending at the Colorado Supreme Court. In that case, the plaintiff was terminated for using medical marijuana, which was legal under Colorado state law. His termination was upheld at the trial court and at the state Court of Appeals. According to one news source, oral argument at the state Supreme Court is expected to take place later this summer, with a decision in the autumn.

In some states marijuana use is legal, and termination of an employee for marijuana use is also legal.

Believe it or not!

Weird Tales.page1-324px-Weird_Tales_volume_36_number_01.djvu

“These stories are too crazy for us.”


If we have a lot of minority employees, how can we be guilty of discrimination? Finally, we have Green Bay-area-based Wisconsin Plastics, which has been sued by the EEOC for national origin discrimination. The company laid off some employees who were assessed in a number of criteria, including English fluency. Almost all of the individuals who were selected for layoff were Hmong, and a few were Hispanic. The company, which has reportedly received diversity awards in the past, says that the lawsuit is “completely without merit” and added, “The twelve positions affected by the layoff were from a pool that was comprised of 91 percent of racial and ethnic minorities, including Hmong, Hispanic, African-American and American Indian employees.”

Is it that time of year already? The American Bar Association is accepting nominations for its 8th Annual Blawg 100. If you enjoy Employment & Labor Insider and are so inclined, please go to this link and briefly explain why we should be on the “A” list of legal blogs. The deadline for nominations is 5 p.m. Eastern Friday, August 8. We very much appreciate your support, as always!

Well, heck, then, the company ought to win, shouldn’t it?

Not necessarily. I suspect that, among the Hmong, Hispanic, African-American, and American Indian employees, the Hmong (the overwhelming majority of those laid off) had the fewest fluent English speakers. On the other hand, I would assume that all of the African-Americans and all of the American Indians spoke English fluently. If I’m right, then this type of diversity probably won’t get the company very far in a lawsuit alleging discrimination based on language. If the company made layoff selections based on English fluency, it will have to prove that there was a legitimate safety-related or other compelling reason to require employees to communicate in English. (The EEOC alleges that there wasn’t one.)

Not all minority groups are the same.

Believe it or not! 

DOT updates guidance on substance abuse test collections

Posted in Drug Testing, Transportation Industry

The U.S. Department of Transportation’s Office of Drug and Alcohol Policy and Compliance, with the Office of General Counsel, has recently issued new guidance governing the collection process for substance abuse testing. Collections are sometimes considered a “weak link” in DOT drug testing programs because collectors are usually third parties, making it difficult for employers to monitor and ensure their compliance.

A new “Q & A” for 49 CFR Part 40, which will take effect this Monday, July 14, discusses the following issues:

*When may a collector give an employee permission to leave a collection site?

*What happens if an employee leaves the collection site before the testing process is complete?

Also, effective July 3, the DOT issued a revised version of its Urine Specimen Collector Guidelines. (The Guidelines’ last update was on October 1, 2010.) Many of the revisions are not substantive (for example, the DOT has provided updated links to websites and removed effective dates that have already passed). Substantive changes, intended mainly to clarify what actions are “required” as opposed to simply “authorized,” are in italics in the new Guidelines.

Constangy’s award-winning employment law app is now available for Android devices! Find out what the  iPhone users have been shouting about — employment law checklists, wage-hour and workers’ comp calculators, contact information, and of course all of our firms’s publications, including this blog. Best of all, the app is free!

Following these five tips will help you ensure that your collector is complying with DOT requirements:

• Use only collectors who can produce a current collector training certificate from a nationally recognized industry association.

• Make sure that your contract with the collector spells out the terms of your relationship, including procedures that will ensure the integrity of the specimens and the testing process, and an indemnification clause that protects your company in the event of a collector error.

• Conduct occasional surprise visits to your collection site, and use an audit checklist to catch any errors in site preparation or specimen collection.

• Make sure that your Medical Review Officer knows to promptly notify you of any collector errors and to order collector retraining when necessary.

• Periodically engage an independent auditor to test the integrity of your collectors and the processes they follow. In the (hopefully rare) event of serious misconduct – such as a collector’s accepting bribes to ignore positive test results, substitutions, or adulterations – have the auditor gather the evidence that will allow you to make a decision regarding whether to report the collector to the DOT.

And That’s All She Wrote (Why I write)

Posted in Uncategorized

Dan Schwartz of the outstanding Connecticut Employment Law Blog tagged me (among others) last week to participate in a “blog hop,” where we all talk about ourselves – what we do, and why.

I have decided to do this in the form of a micro-novel.

“Here is why I write what I write,” she wrote.

What am I working on?

“I always wanted to write a great novel,” Robin said, listlessly munching the last shards of crushed ice in her Diet Coke.

“Really?” He was surprised; she did not seem the type. “What about?”


The Thinker

“I have no clue.”


She gazed thoughtfully out the window. “That’s the problem. I don’t know,” she said. “So I guess I’ll have to keep blogging about employment law topics, with special emphasis on the Americans with Disabilities Act, sexual harassment, and celebrity employment law scandals and how we can all learn from their bad example.”

“Well, that’s better than nothing, I guess,” he said, trying to keep things light.

“It’ll have to do,” she sighed.

How does my writing differ from others of its genre?

Robin liked to think that she was pithy and witty, but her bravado masked the fear that she was nothing special and that all of the other employment law bloggers were better.



She feared that the other employment law bloggers were smarter and better than she.


Why do I write what I write?

“Why do I write what I write?” she pondered. That was the question. Well, she was an employment lawyer, so there was that. She had neither the profundity required to be a novelist, nor the attention span required to be the author of a great legal treatise. On the other hand, Anthony Weiner’s compulsive need to tweet his intimate parts, or Lady Gaga crashing and burning in an FLSA deposition – the power of these stories impelled her. As if an alien force had taken possession of her, blog posts about such topics seemed to write themselves.

How does my process work?

That entire week, Robin scoured Bloomberg BNA’s Daily Labor Report, Employment Law360, the London Daily Mail, TMZ, and the New York Post.



“Oh, what on earth shall I write about this week?”


“Eureka!” she exclaimed at 3:14 p.m. Thursday, seeing that an employer who had fired an hourly employee for pilfering a $1.37 bag of potato chips had settled its Americans with Disabilities Act lawsuit with the EEOC for $180,000. Joyfully slamming her laptop shut, she skipped out to her car and drove the seven minutes to her home, where she could work in solitude. At 10 p.m., her fingertips were sore from her frenetic typing, linking, and searching Wikimedia Commons for uncopyrighted photos to which she could append humorous captions that complemented her post. Her eyelids were lead weights. Calling it a night, she put the laptop to sleep and went to bed with her faithful cat, Spot*, curled up by her side.

*Name has been changed to protect his privacy.

She awoke before the alarm and daylight, her mind aroil in an eddy of edits that had occurred to her during her fitful sleep. She quickly brewed a pot of coffee (strong and black, like the Abadi MT Condensed Bold font that she wished WordPress would allow her to use). She cleaned out Spot’s litter box, and then was back at the laptop, cleaning up the mess that she’d written the night before.

By 8:30, she was hungry. She gratefully ate the previous night’s leftovers, which soaked up the black coffee that had been sloshing in her stomach since 5 a.m.

One last review. No typos? “Publish.”

Then a tweet and a LinkedIn post, and she was done with blogging for another week. Back to work. Her clients awaited.


Epilogue: Please check out my blogging friends

I tag Jason Shinn of the Michigan Employment Law Advisor, who provides excellent and readable coverage of employment law matters, both inside and out of Michigan.

And Heather Bussing of HRExaminer, who provides always-insightful discussion of the legal and philosophical side of Human Resources.

Finally, but not least, I tag Mark Toth of The Employment Blawg. (“Even though Mark was on hiatus for the summer, Robin hoped that he might cut his break short to explain why he writes, or at least give her something to look forward to when he returned in the fall.”)

Adopt an arbitration program that covers class, collective claims

Posted in Alternative Dispute Resolution, Class actions, Wage-Hour

Guest post by Tommy Eden, a partner in Constangy’s Opelika, Alabama, and West Point, Georgia, offices.

In all the hoopla over the Supreme Court’s Hobby Lobby decision last week, it may have been lost that the Court refused to review a circuit court decision compelling arbitration in a collective action under the Fair Labor Standards Act.

All federal courts of appeal to decide the issue so far have found that an employee may waive his or her right to bring an FLSA collective action in court through a valid arbitration agreement. That would include the Second, Fourth, Fifth, Eighth, and Eleventh Circuits. (For a listing of the states governed by these circuits, please go to the jump at the bottom of this page.)



Arbitration of FLSA collective claims: an easy call?


In Walthour v. Chipio Windshield Repair, LLC, the decision that the Supreme Court declined to review, the plaintiffs alleged failure to pay minimum wage, overtime, and FLSA recordkeeping violations. The employers moved to compel arbitration, citing mandatory arbitration agreements that the plaintiffs had signed shortly after they were hired. The agreements specified that all employment disputes, including class claims, were to be resolved exclusively through individual arbitration. A federal district court in Georgia granted the employers’ motion and dismissed the lawsuit. The plaintiffs appealed to the U.S. Court of Appeals for the Eleventh Circuit, which affirmed the dismissal.

The plaintiffs then asked the U.S. Supreme Court to review the 11th Circuit decision, and last week the Court declined. This doesn’t necessarily mean that the Supreme Court agrees with the 11th Circuit, but it does mean that the decision stands for the time being. So far, every federal appeals court to address the issue has found that the FLSA does not provide a non-waivable, substantive right to bring a collective action.



“Yer OUT (of court)!”


Employers who want to ensure that they can arbitrate FLSA collective and other claims should consider adopting the following:

*An internal complaint process, including a toll-free hotline, with a “no-retaliation” promise

*Multiple channels for employees to make complaints, published in the employee handbook and in other conspicuous places throughout your facilities

*Training for employees on the complaint process and how to use it

*An arbitration agreement that complies with the law and covers class and collective claims, using arbitrators from AAA or another respected source.

Although arbitration is no panacea, it is generally faster and more efficient than litigation in court. Moreover, a recent study by Cornell University on arbitration of discrimination claims indicated that plaintiffs were successful about 36 percent of the time in court, but only about 21 percent of the time in arbitration, and the plaintiffs who won in arbitration won smaller awards than they did in court. It’s possible that the win-loss results in arbitration of FLSA cases might be similarly employer-friendly. (On the other hand, there may not be much difference in the damages awarded because the FLSA does not provide for recovery of compensatory and punitive damages.)

To see which federal circuit court of appeals covers which states, read on.

Continue Reading

Six reasons why Hobby Lobby does not spell “doom” for women

Posted in Affordable Care Act


I was interviewed yesterday by Colin O’Keefe of LXBN-TV on the impact of the Supreme Court’s Hobby Lobby decision, and I did a “quick and dirty” post on the decision the day it was issued. Since that time, the decision has been sharply criticized in the traditional media and on social media.

Here are six reasons why I think the decision is not the end of the world, even if you are strongly in favor of the “contraceptive mandate” in the Affordable Care Act.

1. The Supreme Court already ruled in 2012, in National Federation of Independent Business v. Sebelius, that the Affordable Care Act is legal and constitutional.

2. The Supreme Court ruled in 1965, in Griswold v. Connecticut, that states could not impose criminal penalties for the use of contraceptives. According to the majority, the right to make one’s own decisions about whether to conceive children fell within a “zone of privacy created by several fundamental constitutional guarantees.”

If you have tried to leave a comment for this blog in the past few weeks, please be assured that we have not been censoring or ignoring you. We had some technical difficulties with our new blog platform and were not receiving notifications when your comments were submitted. We just found a stash of older comments and published them this week. We apologize for the difficulty, and we believe we have the problem fixed so that it will not occur in the future. We love your comments and hope you will keep ‘em coming!

3. Therefore, it was (and is) legal for the ACA to require that contraceptive coverage be provided by employers to employees without cost-sharing (that is, at no expense to the employee).

4. To qualify for the exemption created by the Religious Freedom Restoration Act as interpreted by the majority of the Supreme Court justices in Hobby Lobby, the employer’s religious belief must be sincerely held. For years before the ACA was even a light bulb over somebody’s head, the Hobby Lobby employers (collectively) had Christian codes of conduct for their businesses and closed on Sundays, taking the accompanying hit on revenues. Mr. and Mrs. Green, the founders of Hobby Lobby, frequently ran full-page newspaper ads proclaiming Jesus Christ as Lord. These were people who were serious about their faith. I have no statistics, but I feel sure that very few employers in America will meet this “sincerity” requirement, assuming they even care to do so.


Not every believer is a fervent believer.


5. Religion is not a monolith. “Free-for-all” is more like it. People of faith were sharply divided on the Hobby Lobby issue. The division didn’t go away even after you narrowed down “people of faith” to “Christians.” For example, among the Christian organizations submitting amicus (“friend of the court”) briefs on the side of the Hobby Lobby employers were the Christian Legal Society, the U.S. Conference of Catholic Bishops, and the National Association of Evangelicals. Submitting amicus briefs on the side of the Government was a group of “Religious Organizations” that included the Catholics for Choice, the Disciples for Choice (a pro-choice group within the Disciples of Christ denomination), and the Methodist Federation for Social Action. And this is just the Christians. After you factor in employers who practice other faiths, and the vast majority of employers who do not consider religion relevant to what they do, it’s pretty clear that the number of employers seeking a “Hobby Lobby” accommodation will not be significant.

6. But even with respect to that relatively insignificant number, the Court made it clear that their employees will still get contraceptive coverage. The Court did not say that employees will lose their coverage, or have to pay for contraceptives themselves. The Court said only that the government may have to provide the coverage instead of the employer — without cost sharing — via some sort of religious accommodation “workaround.”* Which is reportedly being developed as we speak.

*The current “workaround” for religiously affiliated non-profit organizations is being challenged by a few organizations led by the Little Sisters of the Poor, an order of Roman Catholic nuns who operate charitable nursing homes. The Sisters say that the workaround still requires too much collusion on their part. In January, Justice Sonia Sotomayor, one of the dissenters in Hobby Lobbygranted the Sisters’ request for a temporary stay while the case is being reviewed by the Supreme Court.

It’s also worth noting that even the Hobby Lobby employers provided coverage for 16 of the 20 contraceptives approved by the Food and Drug Administration. They balked only at the ones that prevented a fertilized egg from implanting in the mother’s womb, believing that this was the equivalent of an abortion. Admittedly, other employers may have a sincere religious objection to providing coverage for any contraceptives. But, again, there will be a workaround.

As the Supreme Court majority said, not every employer is going to be shielded from the obligation to provide employee benefits based on the Religious Freedom Restoration Act. They’ll have to prove (1) that they have a sincere religious objection, (2) that compliance with the government requirement would be a “substantial burden,” and (3) that there are less burdensome ways for the government to achieve its goals. That’s a standard that few employers will be able to meet.

So, for those of you who disagreed with the Court’s decision, it really is not the end of the world.

And have a happy Fourth of July!



Those were some expensive chips.

Posted in Americans with Disabilities Act, Discrimination, Settlements

I’ve posted here and here about the lawsuit filed by the Equal Employment Opportunity Commission against Walgreen, which terminated a diabetic drug store employee for eating a bag of potato chips without immediately paying for them. The employee contended that she had to have the chips because her blood sugar was low, and she said she was unable to comply with the store’s normal procedures for paying for merchandise.

Law360 reported this morning that the lawsuit has been settled — for $180,000. The news item requires a paid subscription, but here is a copy of the Consent Decree.

Yes, this was California/Ninth Circuit, but employers really need to be careful about taking action for “misconduct” when the employee contends that the “misconduct” was caused by a disability.

$180,000 over a $1.39 bag of chips. That hurts.

BREAKING: Supreme Court 5-4 finds in favor of Hobby Lobby and against SEIU

Posted in Affordable Care Act, Labor Relations

The Supreme Court, in a 5-4 decision, found today that the contraceptive mandate in the Affordable Care Act, to the extent that it applies to closely-held corporations, violates the Religious Freedom Restoration Act. And in another 5-4 decision, the Court found that the First Amendment does not allow home healthcare workers to be compelled to pay agency fees to the Service Employees International Union.

The following are summaries of each decision:

Burwell v. Hobby Lobby: Regulations issued by the U.S. Department of Health and Human Services under the Affordable Care Act required that employers provide coverage for 20 contraceptive methods approved by the Food and Drug Administration, including four that can prevent a fertilized egg from implanting in the mother’s womb. This is known as the “contraceptive mandate.”

The HHS has already exempted religious employers and religious non-profits from complying with the contraceptive mandate if they object to doing so on religious grounds.

Two closely held, for-profit companies — Hobby Lobby Stores and Conestoga Wood Specialities and their owners — challenged the mandate as applied to them on the ground that it violated the owners’ religious beliefs. The U.S. Court of Appeals for the Third Circuit (Delaware, New Jersey, Pennsylvania) ruled against Conestoga, and the U.S. Court of Appeals for the Tenth Circuit (Colorado, New Mexico, Oklahoma, Utah, Wyoming) found in favor of Hobby Lobby.

The Supreme Court decision issued today held, 5-4, that even for-profit businesses are protected by the Religious Freedom Restoration Act, which prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability.” There is an exception if the government can show “that application of the burden . . . (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that . . . interest.”

Justice Alito wrote the majority opinion, joined by Chief Justice Roberts, and Justices Kennedy, Scalia, and Thomas.

Justice Kennedy wrote a concurrence.

Justice Ginsburg dissented, joined by Justice Sotomayor, and joined by Justices Breyer and Kagan as to all but Part III-C-1 (arguing that for-profit corporations cannot “exercise religion”). Justices Breyer and Kagan filed a separate dissent.

Some quick highlights from the majority decision:

*For-profit corporations are capable of “exercising religion.”

*The contraceptive mandate forces the company owners to violate their religious beliefs that life begins at conception.

*It is not a viable solution to tell these companies that they can forgo providing health insurance coverage at all, given the owners’ beliefs that providing health insurance is consistent with their religious beliefs, and given the monetary penalties associated with failing to provide coverage.

*Even if providing access to the four contraceptive methods were a compelling governmental interest, there are other ways for the government to achieve its interest, such as directly providing coverage to the women who want it, or extending the same exception that it has made for religious non-profits to for-profits.

*The decision’s rationale does not necessarily apply to companies with religious objections to, for example, providing coverage for vaccinations or blood transfusions, or protect religious for-profit employers from claims for unlawful discrimination.

Harris v. Quinn

By David Phippen

In the other decision issued today, the Supreme Court struck down an Illinois requirement that home health care workers — who were reimbursed through a federal Medicaid-funded state program — pay agency fees to the Service Employees International Union even though they did not want to join the union as members.

The majority opinion in the Court’s 5-4 decision was written by Justice Alito, joined by Chief Justice Roberts, and Justices Kennedy, Scalia, and Thomas. Justice Kagan, joined by Justices Breyer, Ginsburg, and Sotomayor, dissented.

The Illinois requirement was created by a regulatory and legislative scheme, and addressed in a collective bargaining agreement with the SEIU.


The Court held that the home health care workers were “state employees” only to a limited extent and that the state could not show a compelling state interest in forcing them to support a group they did not want to support, in violation of their rights under the First Amendment to the U.S. Constitution.

But the Court rejected a broader argument by the workers that any agency fee requirement for public employees violated the First Amendment in that it forced political support to a union for petitioning a government entity.

A prior Supreme Court decision, Abood v. Detroit Bd. of Educ., allows states and unions to enter into collective bargaining agreements that require payment of dues by members or agency fees by individuals who do not want to be members. Today’s decision leaves that earlier decision in place, but the Court today said that the healthcare worker in Harris were primarily employees of their customers, not of the state.


Same-sex marriage and the FMLA: What you need to know

Posted in Family and Medical Leave Act

As most of you have heard by now, the U.S. Department of Labor has provided a “sneak preview” of a Notice of Proposed Rulemaking on the definition of “spouse” in the Family and Medical Leave Act. The proposed changes would broaden the definition of “spouse” to include most same-sex married couples.

The proposed changes are intended to reflect (and expand upon) last year’s Supreme Court decision in United States v. Windsor. That decision overruled Section 3 of the Defense of Marriage Act, which defined “marriage” for purposes of federal law as being between one man and one woman.

Gay wedding.Brides and grooms.512px-JustsayIdo

Consistent with Section 3 of the DOMA, the DOL has traditionally defined “marriage” for FMLA purposes in this same way (that is, as male-female). With respect to opposite-sex spouses, the DOL determined whether a couple was validly married based on their state of residence. As an example, if Joe and Mary got married in California and moved to North Carolina, they would be “spouses” if North Carolina recognized the marriage.

When you’re talking about opposite-sex couples, this is no big deal because a marriage validly entered into in one state will be always honored by the other states.

But this principle does not necessarily apply to same-sex couples. If Keith and David got married in California (where it is legal) and moved to North Carolina (which does not recognize same-sex marriage), then they are not validly married while they’re living in North Carolina. That’s because Section 2 of the DOMA, which has not been overruled (yet), says that a state does not have to recognize a same-sex marriage, even if it was valid in the state where it was entered.

The Windsor decision didn’t address this situation — Windsor involved a same-sex couple who were married in one state in which same-sex marriage was legal, who then moved to another state in which same-sex marriage was legal. The Court in Windsor said that it was unconstitutional for federal law to treat the couple in these circumstances as “not married.” But Windsor did not address what would happen if a validly-married same-sex couple moved to a state where same-sex marriage was not recognized.



“It’s complicated.”


Is all of that clear as mud? For even more confusion, read this.


The changes proposed to the FMLA regulations would essentially provide for uniform treatment of same-sex spouses by looking at the “state of celebration” (the state where the marriage was entered) instead of “state of residence.” In other words, if you are validly married according to the laws of the state in which you got married, then you are “spouses” for FMLA purposes regardless of where you may live in the future.


Party.Foam party.People_at_a_foam_party

This is NOT what we mean by “State of Celebration.”


The DOL argues that its proposed changes will provide for more consistency, which will make things easier for same-sex couples and for employers who have multi-state operations. The DOL also noted that the U.S. Department of Defense already follows a “state of celebration” rule for military spouses.

Whew. OK! Now!

Here are the highlights of the proposed FMLA rule:

1) Instead of using “place of residence” in determining whether a couple is validly married, the proposed rule would use “place of celebration” — that is, the place where the marriage was entered. So if Sue and Josephine get legally married in Massachusetts, they will be eligible for spousal FMLA leave regardless of where they live afterward. (Assuming, of course, that they work for a “covered” employer, meet the eligibility requirements for FMLA leave, haven’t already used their allotted FMLA leave, and need the leave for a qualifying reason.)

2) The FMLA definitions in the proposed rule expressly state that “husband and wife” includes same-sex spouses.

3) For same-sex couples who were married outside the United States, they will be considered “husband and wife” as long as the marriage (a) was valid where entered, and (b) would be considered valid in at least one (presumably U.S.) state.

Falling like dominoes and dropping like flies: This week, two judges of a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit* affirmed a decision striking down Utah’s ban on same-sex marriage. This is the first appellate-level decision we have on this issue. And a federal district judge in Indiana has struck down Indiana’s ban.

*The Tenth Circuit hears appeals from federal courts in the states of Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.


Here are other Constangy publications from the past week that might interest you:

David Phippen has been busy this week. First, he wrote our May-June edition of the Executive Labor Summary. Then the Supreme Court came out yesterday with that Noel Canning decision, finding President Obama’s recess appointments to the National Labor Relations Board to be invalid. Here is David’s always-insightful analysis of yesterday’s decision.

If you haven’t already seen it, be sure to check out Tommy Eden’s guest blog post from earlier this week about Jarvela v. Crete Carriers (the alcoholic truck driver case from the U.S. Court of Appeals for the Eleventh Circuit).

Alcoholic truck driver case is good for transportation employers, but be careful

Posted in Americans with Disabilities Act, Drug Testing, Transportation Industry

ROBIN’S NOTE: I am happy to have Tommy Eden back again for a guest post. Tommy is from Constangy’s offices in Opelika, Alabama, and West Point, Georgia. He drafts DOT and state-specific drug testing policies for clients nationwide, and he serves on the Board of the Substance Abuse Program Administrators Association.

Don’t get too excited about that recent decision upholding the termination of the alcoholic truck driver.



Proceed with caution!


The U.S. Court of Appeals for the 11th Circuit, which hears appeals from federal courts in Alabama, Florida, and Georgia, recently affirmed summary judgment for Crete Carrier Corporation. Crete fired one of its truck drivers working out of its Atlanta terminal after the driver was diagnosed with alcoholism. The driver had sued for disability discrimination under the Americans with Disabilities Act and also had interference and retaliation claims under the Family and Medical Leave Act.

The regulations of the U.S. Department of Transportation say that an individual is not qualified to operate a commercial motor vehicle if he has a “current clinical diagnosis of alcoholism.” The regulation doesn’t really define what this means, but it gives employers Tommy-Eden.jpegthe authority to determine whether a driver is able to work. In Crete’s case, it had a policy providing for termination of any driver who had a diagnosis of alcoholism in the past five years. When Crete terminated the plaintiff, Sakari Jarvela, Mr. Jarvela had been diagnosed for only six weeks.

Mr. Jarvela contended that only a DOT medical examiner (who had issued him a six-month medical certification) could determine whether he had a current clinical diagnosis of alcoholism. However, the court rejected his argument, noting that the DOT regulations make clear that an employer makes the final determination regarding who is qualified to drive a commercial truck. Because the regulations “place the onus on the employer to make sure each employee is qualified to drive a commercial vehicle,” the court said, “the employer must determine whether someone suffers from a current clinical diagnosis of alcoholism.” Thus Mr. Jarvela was not able to meet an essential job function as set forth in his written job description.


Truck Crete

Great result for Crete.


So, why should transportation employers be cautious?

*Alcoholism is a “disability” within the meaning of the ADA, and employers may have to make reasonable accommodations to employees with alcoholism. (The ADA rules on use of illegal drugs are much more employer-friendly than the rules on alcoholism. It’s usually legal to fire an employee for current use of illegal drugs.)

*The ADA rules say that if another federal law (like DOT regs) prohibits the hire or employment of someone based on a medical condition, then a covered employer can obey that law without violating the ADA. But if the other federal law gives the employer any leeway (for example, saying only that the employee must be removed from certain job duties), then the employer has to comply with its ADA obligations, which could include the reasonable accommodations of job restructuring or transfer to a different job.

*The DOT regulations say only that a person with a “current clinical diagnosis of alcoholism” is not qualified to drive. This, if you’ll pardon the expression, leaves an ADA loophole big enough for an 18-wheeler to drive through. Most importantly, it means that a transportation employer might have to consider reassigning an alcoholic driver to a non-driving position – for example, a loading dock job – as a reasonable accommodation. Mr. Jarvela apparently realized this too late. He didn’t make the argument soon enough, and so the issue was considered “waived” on appeal.

*Mr. Jarvela’s official alcoholism diagnosis was only six weeks old, which is pretty “current” by any standard. Would the result have been the same if he had been diagnosed 4 ½ years before his termination?

The FMLA issues in the Crete case were more straightforward. The Court found that Mr. Jarvela did not have a valid FMLA “interference” claim (wrongful denial of FMLA leave) because he was already due to be terminated for violating Crete’s no-recent-alcoholism rule. Mr. Jarvela did not have a valid FMLA “retaliation” claim (adverse action for requesting FMLA leave) because it was already established that he was terminated for violating the no-recent-alcoholism rule, not for requesting FMLA leave.

So, transportation employers, this case is good news, but here are some things you can do to put yourself in a stronger position if you have to take action against a driver with a substance abuse problem:

Make sure that your job descriptions and policies clearly say that qualification to drive (under both the DOT regulations and in the opinion of the company) is an essential function of the driver job.

Because the DOT regulations on alcoholism are vague, make sure your policy defines “current.” And it’s best for your definition to be based on some recognized medical or scientific authority — otherwise, you may have trouble defending yourself before the EEOC or in court.

To the extent the law lets you, be sure to pay attention to information about medical disqualification regardless of the source – including workers’ compensation records, Medical Review Officer safety concern letters, or fitness for duty evaluations.

Become intimately familiar with the DOT regs, and watch out for those ADA weasel words like “may” or “not qualified to drive.” The provisions especially relevant to substance abuse are 49 C.F.R. Parts 40 (MRO review and verification process), 382 (actual knowledge), and 391 (disqualification of drivers).

If you haven’t already, develop a good relationship with a physician who has the medical expertise you need and who is also aware of DOT requirements and the ADA.

ADA interactive process: A quiz for employers

Posted in Americans with Disabilities Act

What do you really know about the “interactive process” under the Americans with Disabilities Act? This is one area in which I am always getting questions, and I think it’s the terminology that scares employers. “Interactive process” sounds so intimidating.

Instead of ”interactive process,” it should be called “sit-down.”

When an individual needs a reasonable accommodation, the employer is supposed to have an actual or virtual “sit-down” with the individual to brainstorm about reasonable accommodation options. As with all sit-downs, face to face is best, but it’s also fine to do it by telephone or email.


“Ya gotta have a sit-down, yo.”


Once all the accommodation options are on the table, the employer considers them all, giving due consideration to any suggestions made by the individual. The employer then chooses the one that works best. If the employee suggests an accommodation that costs $10,000, and the employer knows of an effective accommodation that costs $10, the employer has the right under the law to pick the $10 accommodation.

Sometimes neither the individual nor the employer will know of any accommodation that will work. In that case, you document what you did, and take whatever action is appropriate under the circumstances.

Isn’t that easy?

Now that you’ve had that quickie lesson on the ADA “sit-down” “interactive” process, here’s a quiz. As usual, there is no grading and no pressure, because the answers immediately follow the questions.


What is the ADA interactive process?
pollcode.com free polls 


The correct answer, of course, is “Talking directly about reasonable accommodations with the individual.”

You did a great job! Read on . . .

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