Very interesting article in today’s New York Times about hospitals and other medical businesses adopting policies that prohibit the hiring of smokers in an effort to increase worker productivity, reduce health care costs and encourage healthier living.

Even some anti-tobacco groups are uncomfortable with the policies, however.  One professor is quoted in the article as saying: “If enough of these companies adopt theses policies and it really becomes difficult for smokers to find jobs, there are going to be consequences.  Unemployment is also bad for health.”   One concern is that such policies are a slippery slope — that if they prove successful in driving down health care costs, employers might be emboldened to crack down on other behavior by their workers, like drinking alcohol, eating fast food and participating in risky hobbies like motorcycle riding. “There is nothing unique about smoking,” said Lewis Maltby, president of the National Workrights Institute. “The number of things that we all do privately that have negative impact on our health is endless. If it’s not smoking, it’s beer. If it’s not beer, it’s cheeseburgers. And what about your sex life?”

The article points out that more than half the states, after lobbying by tobacco companies and the ACLU,  have passed laws rejecting bans on smokers.  Minnesota is one of those.  In 1992, it passed the “lawful consumable products” act, prohibiting employers from refusing to hire a job applicant, or discipline or discharge an employee, for the “use or enjoyment of lawful consumable products” off the premises during nonwork hours.  There is an exception, however, if the restriction relates to a bona fide occupational requirement and is reasonably related to employment activities.  Query whether this gives health care companies the right to restrict non-healthy behavior.

The Times article points out that about 1 in 5 Americans still smoke, and smoking remains the leading cause of preventable deaths. And employees who smoke cost, on average, $3,391 more a year each for health care and lost productivity, according to federal estimates.

It looks like the National Labor Relations Board will not weigh in on the use of Facebook in the workplace anytime soon.

I wrote here about the Complaint brought by the NLRB against a Connecticut ambulance company that fired an employee after she criticized her supervisor on Facebook.  The NLRB announced yesterday that it had reached a settlement to resolve the  complaint against American Medical Response of Connecticut Inc.

Among the issues in the case was whether a worker has the right to criticize a boss on a site such as Facebook if co- workers add comments. The case was the first by the NLRB to assert that employers break the law by disciplining workers who post criticisms on social-networking websites.

Under the settlement, American Medical Response will revise its “overly broad rules” to ensure that they don’t improperly restrict employees from discussing wages, hours and working conditions with co-workers and others while not at work, and that they wouldn’t discipline or discharge employees for engaging in such discussions, the NLRB said in a statement.  The company also promised that employee requests for union representation when meeting with managers won’t be denied in the future, and that employees won’t be threatened with discipline for requesting union representation, according to the agency.

As I’ve said before,  employers need to  review their Internet and social media policies to ensure that they cannot be viewed as an improper effort to prohibit employees from exercising their rights to discuss wages, working conditions and unionization.  Second, employers should not discipline or terminate an employee for making disparaging remarks until it has considered whether those remarks might be protected.  The NLRB seems to be ramping up its efforts in this area, so employers need to be especially careful.

These cases are usually difficult to sort out; don’t hesitate to consult with experienced employment counsel on them.

I previously wrote here about the NLRB’s claim that an employee was unlawfully fired for criticizing his boss on Facebook.  Now, the Wall Street Journal has a very good article discussing that case and others involving social media in the employment context.

A federal judge in Chicago signed a consent decree this week resolving a 2009 class-action suit the Equal Employment
Opportunity Commission had filed against Supervalu’s Jewel-Osco chain.  The EEOC had alleged that Jewel had a “policy and
practice” of terminating employees with disabilities at the end of their medical leaves, instead of bringing them back to work with
reasonable accommodations — as required by the Americans With Disabilities Act.  Since 2003, about 1,000 Jewel  workers were allegedly terminated under this policy, the EEOC claims. The 110 workers who will share the $3.2  million will get an average of $29,000 each.  That per-person award is the highest ever in a discrimination case involving the Americans With Disabilities Act according to the EEOC.

I have written about the use of background checks in general, and credit reports in particular, several times before, including here, here and here.   Now there is word that the University of Miami Medical School is facing a class action lawsuit over its use of credit reports to disqualify job applicants.

The plaintiff in this new case is African-American who was conditionally offered a position as a collector with the University of Miami School of Medicine.   After her credit report showed some delinquencies, however, the offer was withdrawn.   Her lawsuit alleges that Blacks and Latinos experience higher rates of financial difficulties, and have lower credit ratings than whites.  It also claims that there is no correlation between job success and credit ratings.  Therefore, the plaintiff alleges that the use of a credit check discriminates against her on the basis of her race, and violates Title VII of the Civil Rights Act.   She seeks certification as a class action

The EEOC has taken the position that any selection criteria that might have a disparate impact on minority applicants must be shown to be job-related and “consistent with business necessity”.  In other words, an employer who uses credit checks or other background searches needs to be able to show how that information is related to the applicant’s ability to perform the job in question.  Blanket policies which do not consider individual circumstances will open the door to charges of discrimination.

Today’s New York Times carries a very interesting column by Steven M. Davidoff, a professor at the University of Connecticut School of Law, on the contrast between how publicly-held and privately-held companies treat requests for indemnification from errant executives.

Indemnification requires an employer to pay any damages awarded against an executive (and usually cover his legal fees as well) who has been found to have engaged in wrongdoing.  Prof. Davidoff points out that public companies almost always offer very broad indemnification rights to their executives, while private companies are much more reluctant to do so.  His thesis is that executives of public companies do not directly bear the cost of indemnifying their errant brethren- the shareholders do – so it is easy for them to use company funds to pay legal judgments.   Moreover, these executives do not want to deny indemnification to a predecessor when they themselves may need such consideration in the future.  By contrast, privately-held companies have no shareholders to bear the cost; therefore, its executives, who are also its owners,  will deny such requests in order to protect their own bottom line.   The result:  wrong-doers in public companies walk away whole, while those in private firms end up paying out of their own pocket.

What Prof. Davidoff does not mention is that in many states, including Minnesota, employers are required to indemnify their employees for employment-related damages, penalties or fines unless there is proof that the employee was guilty of “intentional misconduct, willful neglect of the duties of the employee’s position, or bad faith”.   Some Minnesota corporations have an even broader obligation, including having to advance legal fees to the employee while the matter is still pending. 

Prof. Davidoff is correct in urging companies to limit their willingness to absolve executive wrongdoers, but companies must also consider whether state law permits them to do so.

A Complaint filed by the National Labor Relations Board in Connecticut has been receiving a lot of attention in the news this week, but it is important to view it in context.

Overview: The complaint alleges that an ambulance service, American Medical Response of Connecticut, Inc.,  (1) illegally denied union representation to an employee during an investigatory interview; (2) illegally terminated the same employee after she posted negative remarks about her supervisor on her personal Facebook page; and (3) maintained and enforced an overly broad blogging and internet posting policy.

Underlying Facts:  When asked by her supervisor to prepare a report responding to a customer complaint about her work, the employee requested but was denied representation from her union.  Later that day, the employee used her home computer to post a negative remark about the supervisor on her personal Facebook page.  The post drew supportive responses from her co-workers, and led to further negative comments about the supervisor from the employee. The employee was suspended and later terminated for her Facebook postings because such postings violated the company’s internet policies prohibiting disparaging comments.

NLRB Position: The NLRB alleges that the employee’s Facebook postings constituted protected concerted activity, and that the company’s blogging and internet posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors, and another that prohibited employees from depicting the company in any way over the internet without company permission. Such provisions, according to the board, constitute interference with employees in the exercise of their right to engage in protected concerted activity.

Analysis: The filing of this Complaint is important because reminds us that some “concerted activity” by employees may be protected and cannot be used as the basis for discipline or termination.  Both unionized and non-unionized employees are protected by the National Labor Relations Act from being punished  for discussing working conditions or unionization. The Board’s action here reflects a very broad view of workers’ rights; a hearing in January will determine whether the employee’s Facebook posting is really protected activity, or unprotected disparaging and offensive remarks about a supervisor. 

While a blanket policy prohibiting employees from making make disparaging comments about supervisors or discussing the company on the internet is most likely not enforceable, that does not mean that employees have free rein to do so.   To be protected, any criticisms must clearly be related to the employee’s work.  Making fun of a supervisor’s personal characteristics, for example, would not be acceptable.  Similarly, statements that might harm the company or are clearly untrue or defamatory are prohibited.  For example, an airline employee who alleges that the airline is unsafe, without any proof, is not engaging in protected speech. 

Recommendation: First, employers should, however, review their Internet and social media policies to ensure that they cannot be viewed as an improper effort to prohibit employees from exercising their rights to discuss wages, working conditions and unionization.  Second, employers should not discipline or terminate an employee for making disparaging remarks until it has considered whether those remarks might be protected.

I just read a terrific article on document preservation obligations and spoliation of evidence claims by Emily Duke and Cynthia Moyer of the Fredrikson & Byron law firm in the Summer 2010 ABA Section of Litigation, Committee of Pretrial Practice & Discovery publication.  The article, which I haven’t been able to find 0n-line, contains lots of good tips for both clients and their lawyers regarding their obligations to preserve electronic data for litigation purposes.  Among their very sensible suggestions:

• Develop and follow a written document retention policy;
• Have a protocol in place to suspend document destruction in the event of litigation;
• Familiarize yourself with your clients’ computer and electronic-device architecture, as well as the key players and storage protocols;
• In the event that litigation is threatened or commenced, written litigation holds instructing clients to preserve all reasonably accessible sources of relevant records should be distributed;
• Counsel must provide specific instructions during preservation and collection efforts and monitor those efforts, including potentially conducting searches for relevant and responsive data themselves;
• All efforts to identify, locate, preserve and search records containing relevant electronic data should be carefully documented.

Doing this right can be daunting, but the alternative — judicial sanctions and adverse evidentiary inferences –is far worse!

Very interesting article in today’s NY Times about the struggle to find a balance between an employer’s duty to keep its workplaces safe and an employee’s right to privacy in the context of testing employees for the presence of certain prescription.  One company in Tennessee has been sued by three different employees who were fired because the company judged that pain medication they were taking made them a hazard to co-workers.

“The growing reliance of Americans on powerful prescription drugs for pain, anxiety and other maladies suggests that many are reporting to work with potent drugs in their systems, and employers are grappling for ways to address that.  What companies consider an effort to maintain a safe work environment is drawing complaints from employees who cite privacy concerns and contend that they should not be fired for taking legal medications, sometimes for injuries sustained on the job.”

One provider of workplace drug tests has found that the rate of employees testing positive for prescription opiates rose by more than 40 percent from 2005 to 2009, and by 18 percent last year alone. Workers who were tested for drugs after accidents were four times more likely to have opiates in their systems than those tested before being hired.

As one employer’s representative put it:  “Given the liability for industrial accidents or product defects or workplace injuries involving prescription drug abuse, employers cannot afford not to address this issue.”

And don’t think it is just a problem for blue collar workers.  In Texas, a prosecutor resigned in 2008 after a scandal for which he blamed impaired judgment because of prescription drugs. And in Missouri, a patient sued alleging that a doctor had torn a hole in his colon during a 2006 colonoscopy while taking the painkiller oxycodone.

The Americans with Disabilities Act plays a central role in the issue.  The act generally prohibits asking employees about prescription drugs unless workers are seen acting in a way that compromises safety or suggests they cannot perform their job for medical reasons.  As one EEOC lawyer put it:  “The employer must have reasonable belief the person is unable to do the job or poses a threat based on a medical condition.”

Of course, the laws on drug testing are complex and vary from state to state. Minnesota has one of the most rigorous; it prevents employers from doing any drug testing without having a written policy and various protections in place.  Employers can ask workers in safety-sensitive jobs to self-report any potentially dangerous prescription medications, but they cannot ensure they do so.

Experts recommend that employers develop a thorough and consistent policy that spells out which drugs their workers might be tested for and under what circumstances.   In addition, supervisors should be carefully trained to look for signs of impairment — the “reasonable suspicion” necessary under law to warrant testing.