Monthly Archives: November 2012

November 21, 2012

OFCCP Mails Pre-Thanksgiving Audit Notices to Federal Contractors

By Chris Chrisbens

On November 14, 2012, the Office of Federal Contract Compliance Programs (OFCCP) sent out three types of affirmative action audit notices to federal contractors and subcontractors, including Corporate Scheduling Announcement Letters (CSAL).  A CSAL is a courtesy notification that the OFCCP has selected certain establishments identified in the CSAL for an audit sometime during the next 6-month audit cycle. 

A CSAL does NOT trigger an audit. 

As is becoming its custom, OFCCP sent two types of CSALs:  some were sent to the corporate headquarters of multi-establishment federal contractors listing establishments to be audited, but some CSALs were sent directly to the establishments  that may be audited during the next 6-month audit cycle.  It is important to know that a CSAL listing of establishments to be audited is not necessarily exclusive; other establishments could also be audited. 

Only a subsequent Scheduling Letter bearing an Office of Management and Budget approval number triggers an audit.  OFCCP also sent out some Scheduling Letters requiring the federal contractor to submit its affirmative action plan (AAP) and supporting data to the OFCCP within 30 days. 

Samples of all three letters can be found on the OFCCP Website

Federal contractors and alleged federal contractors at both corporate headquarters and at the establishment level should be on the lookout for these CSALs and Scheduling Letters.  CSALs are truly a courtesy to the federal contractor community because they allow an employer to prepare objections if they are not truly subject to federal affirmative action obligations, or otherwise to get their AAP in shape, conduct a self-audit and prepare for audit success. Given that the post-election OFCCP is likely to be more aggressive than ever, federal contractors should wisely use this advance notice. 

According to the OFCCP, contractors “may confirm whether their company was mailed a CSAL by faxing a written request on company letterhead to the Division of Program Operations at 202-693-1305.” 

For assistance with affirmative action planning and OFCCP compliance, including audit preparation and representation, please contact Chris Chrisbens at fcchrisbens@hollandhart.com or 303.295.8193. 

November 12, 2012

Consider ADA Before Discharging Employee When Leave Expires

By Mark Wiletsky

Can you fire an employee who is unable to return to work due to a medical impairment if that individual has exhausted all of his available leave?  What if the employee has been on an extended leave of absence, and has exhausted his Family and Medical Leave Act (FMLA) leave and short-term disability benefits, but still has some restrictions on his ability to work?  The answer: maybe, but only if you have engaged in an individualized inquiry under the Americans with Disabilities Act (ADA) before doing so. 

Some companies provide generous amounts of leave for employees with health or medical issues.  Still, a company should not have a policy by which it automatically terminates employees who cannot return to work when they have exhausted available leave, or if they are unable to return without restrictions.  Such policies likely violate the ADA, which generally requires an individualized approach to working with individuals with disabilities.  Automatically discharging an employee just because that person has exhausted available leave is not consistent with the ADA's individualized inquiry. Similarly, demanding that individuals be 100% recovered from an injury or impairment before returning to work typically violates the ADA's requirement to accommodate disabled employees who are qualified, but unable to perform the essential job functions without an accommodation. 

The Equal Employment Opportunity Commission (EEOC) has challenged a number of companies that maintained these blanket policies, and it continues to do so.  On November 9, the EEOC announced that it entered into a consent decree (which is essentially a public settlement agreement) with a nationwide trucking company that supposedly discharged employees automatically upon exhausting their leave or when they were unable to return to work without restrictions.  Although the company admitted no wrongdoing, to resolve the lawsuit it agreed to pay $4.85 million, revise its policies to comply with the ADA, provide mandatory periodic training to employees on the ADA, report particular employee complaints about the ADA to the EEOC, post a notice about the settlement, and appoint an internal monitor to ensure compliance with the consent decree.

To avoid these issues or a potential ADA violation due to your leave policies, consider the following tips:

  • If you have a policy that requires an employee to be able to work without restrictions, or if you discharge employees as soon as they exhaust available leave, you should work with counsel to revise those policies. 
  • When an employee is nearing the end of his available leave, send a letter or call the employee to remind him that his leave is about to expire.  If the employee is unable to return when the leave expires, set a time to meet with the employee to determine whether you can accommodate the employee, either with more leave (potentially) or with some other type of accommodation.  While you are not required to provide indefinite leave, you may be required to grant some additional time off, or consider another accommodation, if the employee qualifies for protection under the ADA.
  • Follow-up in writing with the employee after the interactive meeting, to confirm the discussion and avoid any disputes down the road about what was said or agreed upon in terms of the employee's status and ability to return to work.

Managing employee leaves is not easy, and it often requires navigating a variety of statutory rights, including the FMLA, the ADA, and workers' compensation.  But taking an individual approach is far better than relying on a "one-size-fits-all" policy, which may very well result in a lawsuit or enforcement action.

November 9, 2012

NLRB: Irrelevant Union Requests Demand Timely Response

by Bradford J. Williams

A union’s request for information demands a timely response, even if the requested information is irrelevant to the collective bargaining relationship or any underlying grievance.  That’s the ruling of a recent National Labor Relations Board (NLRB) decision expanding an employer’s duty to bargain in good faith under Section 8(a)(5) of the National Labor Relations Act (NLRA).  Employers must now timely respond to all requests for information involving bargaining unit members or risk an unfair labor practice charge. 

The statutory duty to bargain in good faith includes the duty to provide unions with information needed to engage in collective bargaining or administration of a collective bargaining agreement (e.g., through a grievance procedure).  As such, the NLRB has long held that employers must timely provide unions with information that is relevant and necessary to their performance as collective bargaining representatives.  It has also long held that employers must timely object to requests for relevant information that might lawfully be withheld on the basis of confidentiality, privacy, or other interests.

Before its decision last month, however, the NLRB had never previously decided whether an employer must timely respond to a union’s request for information that is determined (or admitted) to be irrelevant.  An employer must now timely respond.

In its October 23, 2012, decision, the NLRB held that a company engaged in interstate trucking violated Sections 8(a)(1) and 8(a)(5) of the NLRA by failing for a period of four and one-half months to respond to a union’s request for information involving the company’s drivers.  This was so even though the union admitted that the request was irrelevant to any pending grievance.  In its ruling, the Board characterized the requested information as “presumptively relevant” at the time the request was made because it related to unit employees.  The Board determined that the company had a duty to “respond promptly” to the union’s request, even if just to explain its reason for refusing to provide the (irrelevant) requested information.

The Board’s latest decision is troubling.  Employers may now no longer ignore union requests, even when the requested information is clearly irrelevant to collective bargaining or contract administration.  Instead, they must promptly respond to all requests and either (a) provide the requested information, or (b) explain why it is being withheld.  This is true with respect to any requests involving bargaining unit members.  Employers are thus encouraged to consult counsel immediately after receiving information requests to ensure the preparation of an adequate and timely response.  Failure to do so may expose employers to unfair labor practice charges and give unions leverage in ongoing negotiations or grievance proceedings.

November 5, 2012

NLRB Affirms At-Will Disclaimers

By Dora Lane and Mark Wiletsky

Most employers today provide a handbook or another document confirming employees' at-will status.  Until recently, there was no question that this is a good business practice.  But earlier this year, an NLRB (National Labor Relations Bureau) administrative law judge concluded in Am. Red Cross Ariz. Blood Servs. Region, No. 28-CA-23443 (Feb. 1, 2012), that such a disclaimer violated the employees’ right to engage in concerted activity under the National Labor Relations Act (NLRA).  The judge reasoned that the disclaimer, which said “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way,” effectively precluded employees from engaging in concerted activity (a protected right under the NLRA) to alter their at-will status.     

Thankfully, the NLRB—which enforces the NLRA—has pulled back. On October 31, 2012, the NLRB issued two memos regarding the enforceability of “at-will” provisions in employee handbooks.  The first memo involved a provision, stating as follows:

“No manager, supervisor, or employee at Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.”

This provision was found permissible because it explicitly permitted the company’s president to enter into written employment agreements that modify the employment at-will relationship, and therefore included the possibility of potential modification of the at-will relationship through a CBA ratified by the president. 

The second memo involved the following provision:

“No representative of the Company has authority to enter into any agreement contrary to the foregoing ‘employment at will’ relationship.”

This provision was determined to be lawful (but a closer question than the first provision) because it only highlighted the company’s policy that its own representatives cannot modify the at-will relationship and reinforced that the handbook did not create a contract of employment.

With both of those provisions, the NLRB distinguished the American Red Cross case because there the at-will employment relationship could not be altered or modified “in any way." 

Bottom line: As with its position on social media policies, the NLRB appears to be splitting hairs in terms of what type of language is, and is not, a violation of the NLRA with respect to at-will disclaimers.  While these two decisions suggest that the NLRB will not take an unreasonably aggressive approach in challenging at-will disclaimers, it's not a bad idea to compare your own disclaimer to the ones the NLRB approved to avoid any potential issue with the NLRB.

November 2, 2012

Marijuana in the Workplace: Amendment 64 – Same Can, More Worms for Colorado Employers

Amendment 64 would, among other things, allow individuals age 21 and over to possess and use one ounce or less of marijuana. If the Amendment passes next week, employers will face increased uncertainty when it comes to the enforcement of workplace drug testing policies. A reckoning is inevitable because the debate over the scope of employers' rights to terminate workers who use marijuana outside of work and then test positive in violation of company policy has been brewing for several years in the context of Amendment 20 (which decriminalized the use of medical marijuana by registered patients). Amendment 64 does not clarify the extent of employers' right to terminate for marijuana use. On the contrary, it fans the flames by incorporating language that fueled employment litigation in the medical marijuana context following Amendment 20's passage, and by extending coverage to the general workforce, not just a handful of employees who are registered medical marijuana patients.

The debate to date

In November 2000 Colorado voters approved Amendment 20, which authorizes patients with certain debilitating medical conditions to receive from the State of Colorado a registry identification card allowing them to obtain and use marijuana without threat of criminal prosecution by the state authorities (but not the federal government).

With regard to employers' rights, Amendment 20 states: "Nothing in this section shall require any employer to accommodate the medical use of marijuana in any workplace." Both sides of the debate agree that this language preserves employers' right to prohibit employees from using marijuana at work, regardless of whether employees hold medical marijuana cards.

The parties sharply diverge, however, on the subject of whether Amendment 20 preserves employers' right to prohibit medical marijuana users from reporting to duty under the influence of, or having trace amounts of, the drug in their systems due to off-duty use. This issue typically arises when an employee tests positive for THC (the psychoactive constituent found in marijuana) in a random or post-accident workplace drug screen. Because most workplace drug testing policies prohibit employees from using illegal drugs as defined by federal or state law, employees are typically terminated following such positive results.

In recent years, medical marijuana cardholders who have been terminated from jobs for failing workplace drug screens have argued that the "in any workplace" language allows employers to regulate medical marijuana use at work, but not during non-working hours. These legal arguments take many forms, but the predominate themes in litigation to date are that (1) medical marijuana use is not illegal under state law and (2) employers should not be permitted to regulate an employee's off-duty medical marijuana use absent evidence that a worker is actually impaired at work. One obvious Colorado law that is triggered in the context of this argument is Colorado's lawful off-duty activity statute, which makes it unlawful for employers to terminate workers for engaging in lawful activities outside of work during non-working hours.

On the flipside, employers assert that Amendment 20 does not place any obligation upon companies to accommodate employees who use medical marijuana. Employers are free to enforce their drug testing policies and to prohibit the use of illegal drugs, including marijuana, whether medical or not, even when the use occurs off the worksite during non-working hours. Employers further assert that the Amendment is intended to provide certain individuals with an affirmative defense against criminal prosecution, but not to restrict employers' rights. Moreover, because marijuana is still illegal under federal law, an employee's use of marijuana outside of work is not a "lawful" activity that is covered by Colorado's lawful off-duty activity statute.

To date, Colorado courts have not squarely addressed whether employers can lawfully terminate employees who use medical marijuana outside of work during non-working hours and subsequently fail workplace drug screens. The Colorado Court of Appeals came close to weighing in on the issue in 2011 when it upheld the Colorado Industrial Claim Appeals Office's (ICAO's) decision to deny unemployment benefits to a worker, Jason Beinor, who was terminated for violating his employer's zero-tolerance drug policy after testing positive for marijuana in a random drug test. See Beinor v. Indus. Claim Appeals Office, 262 P.3d 970 (Colo. App. 2011).

Beinor argued that the Colorado Constitution protected his marijuana use because he used marijuana for medicinal purposes outside of work and was in the process of obtaining a registry card. In its opinion, the Court of Appeals made the following observations: (1) marijuana remains a Schedule I controlled substance under federal law and cannot be lawfully "prescribed;" (2) Amendment 20 provides an exemption from criminal prosecution – it does not grant medical marijuana users the "right to use the drug in any place or in any manner;" and (3) medical marijuana users do not have an "unfettered right to violate employers' policies and practices regarding use of controlled substances." However, the court cautioned that its holding was limited to the issue of whether the ICAO properly denied unemployment benefits. By contrast, the court was "not deciding whether the amendment limits an employer from discharging an employee for using medical marijuana." Thus, while the decision provides some helpful guidance into the direction Colorado courts would likely take in the future if faced with the issue, the debate concerning the extent of employers' right to terminate employees for engaging in off-duty use of medical marijuana remains unresolved.

Employers' rights under Amendment 64

Amendment 64 does not provide any additional guidance on this issue. The Amendment contains three provisions that address employers' rights. First, like Amendment 20, Amendment 64 does not require employers to "permit or accommodate" the use of marijuana "in the workplace." Second, employers may have policies restricting the use of marijuana by employees. Third, employers may prohibit and regulate the "possession, consumption, use, display, transfer, distribution, sale, transportation, or growing of marijuana" on their property.

Thus, like Amendment 20, Amendment 64 opens the door for employees to argue that employers may regulate marijuana use inside the workplace, but may not impede employees' right to use marijuana outside of work. However, unlike Amendment 20, which provides an affirmative defense to criminal prosecution, Amendment 64 would decriminalize marijuana use under state law. Additionally, Amendment 64 purports to allow employers to retain policies restricting employees' use of marijuana; however, the Amendment does not specify whether such restrictions may lawfully extend to off-duty use. If the arguments lodged in the context of Amendment 20 are any indication, employees who are terminated for testing positive for marijuana will likely continue to argue that employers' policies may only regulate use and possession on company property.

Employers' drug testing policies at center stage

If Amendment 64 passes, employers' drug testing policies will be at the heart of workplace disputes over employees' marijuana use. Because marijuana use is expected to grow if the Amendment passes, employers may expect that a greater number of employees will likely test positive for the drug in random screens. This increase in positive tests, in turn, will likely lead to a greater number of challenges by employees terminated for violating their employers' zero-tolerance policies. Further, because marijuana use would be lawful at the state level, employers would no longer be able to argue, as they did in the Amendment 20 context, that marijuana is illegal under both state and federal law.

Moreover, if Amendment 64 becomes law, employees who lose their jobs because of a drug screen revealing trace amounts of marijuana in their urine will likely argue that their employers' drug testing programs infringe upon their right under the Colorado Constitution to use marijuana outside of work. In other words, they (or their advocates) will likely take the position that, if a worker is not under the influence of marijuana at work and does not pose a safety risk, an employer may not lawfully terminate his or her employment. Workers will likely further argue that there must be outward signs of impairment at work in order for employers to legally terminate their employment.

Employers, on the other hand, will likely be forced to take a firm and even stance when interpreting and enforcing drug testing policies prohibiting the use of marijuana. Inconsistent application of such policies may expose companies to discrimination claims based on a "disparate impact" or other theory of discrimination. The practical problem that employers may face is that, unlike breathalyzer tests which can easily detect whether someone is under the influence of alcohol at work, urine tests cannot easily detect the level of marijuana impairment. Marijuana may be present in an individual's urine for several weeks. Blood tests may detect the level of marijuana in a person's system with greater accuracy, but they are more invasive and still do not pinpoint when a person actually used the drug. Further, impairment at work can go undiscovered until an accident occurs. This creates an unacceptable risk of exposure for companies which have a duty to protect employees and the public from harm. Policies that prohibit use altogether avoid these and other issues and allow employers to implement drug testing programs with greater efficiency.

Ultimately, marijuana remains a Schedule I controlled substance under federal law. Amendment 64 is clear on that point. Thus, if marijuana is legalized in Colorado, employers will need to take care to ensure that their drug policies expressly prohibit the use of illegal drugs as defined by federal law. Of course, employees who are fired or disciplined for testing positive for marijuana will still likely argue that federal law cannot usurp their right to use marijuana under Colorado's Constitution. However, employers may be able to justify their decision to continue enforcing drug testing policies through reference to federal supremacy or common sense arguments.

Bottom line

If Amendment 64 becomes law, it will ultimately be up to the courts or the legislature to settle the debate and provide employers with the clarity that the Amendment currently lacks. Resolving the unsettled issues could take months, or even years. In the meantime, employers would likely be in the trenches for the foreseeable future, incurring legal fees and spending more internal resources navigating employee grievances.