Court reminds public employers that standard for applicant drug testing different than for private employers
While suspicion-less drug testing of job applicants has become routine for private employers, a federal district court in Florida in Voss v City of Key West, reminded public employers that they were bound by constitutional principles in determining whether an applicant may be required to submit to drug testing. As a result of the City of Key West’s failure to carry its burden of demonstrating special need or an important governmental interest that justified its Fourth Amendment intrusion, a job applicant was granted summary judgment with respect to liability against the city after a conditional offer of employment was withdrawn after she refused to submit to a pre-employment drug test.
Drug-free workplace policy. Key West implemented a drug-free workplace policy “to eliminate alcohol and illegal drug use in the city’s workforce because of its responsibility for the safe, effective and efficient delivery of public services.” The policy provided for: (1) drug testing of all applicants for employment with the city, with refusal to submit to testing resulting in rejection of any application for employment; (2) drug testing of current employees “when the city has a reasonable suspicion that an employee is using or has used drugs or alcohol in violation of city policy;” and (3) random, unannounced drug testing for public safety employees, such as police and fire fighters, and “safety-sensitive positions,” such as commercial drivers.
In 2012, the city created a solid waste coordinator position, a highly visible marketing and planning position to develop, implement, and expand its recycling programs. The applicant applied for the position and provided the city with her driver’s license, educational history, employment history, three references, attested that she had no criminal history, and was subjected to a criminal background search. She was offered the position and was approved by the city manager. At the final stage of the application process, the applicant was asked to provide a urine specimen for a urinalysis drug screen. Rather than report for a drug screening, the applicant went to the city attorney’s office and objected to the pre-employment drug screening. Thereafter, the city offered the position to another candidate because the applicant refused to take the drug test.
Suspicion-less drug testing. The applicant filed suit challenging the application of the drug-free workplace policy to an applicant whose conditional offer of employment was withdrawn after she refused to submit to a pre-employment drug test. As an initial matter, the court observed that it is well-settled that drug testing which utilizes urinalysis is a “search” that falls within the ambit of the Fourth and Fourteenth Amendments. To be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing. However, the Supreme Court has recognized particularized exceptions to the main rule in situations where the government proffers a “special need” or “important governmental interest” which is furthered by the intrusion.
Governmental interest. In this instance, Key West was unable to show a special need or important governmental interest that justified its invasion of the applicant’s Fourth Amendment privacy interest, so the city’s policy was applied to her unconstitutionally.
The court noted that when it is demonstrated that a drug test has been administered without individualized suspicion of wrongdoing, the burden initially falls upon the government to show a special need or important governmental interest that justifies the Fourth Amendment intrusion. Key West argued two alternative interests to justify its policy requiring suspicion-less drug testing for applicants. First, it cited its interest in the “safe, effective and efficient delivery of public services.” In essence, the city relied upon the interest stated within the purpose of the drug-free workplace policy itself. However, the court noted that, while well-meaning, the purpose of the policy outlined a “symbolic” interest that the Supreme Court has previously rejected as a special need justifying suspicion-less drug testing.
The policy’s justification was notably lacking any indication of a concrete danger, observed the court. There was no evidence in the record showing a serious problem of drug abuse among applicants for employment with the city, or even among city employees generally, that might confirm the city’s assertion of a special need for a suspicion-less drug testing regime and justify a departure from the Fourth Amendment’s usual requirement of individualized suspicion. Accordingly, the city’s interest in the “safe, effective and efficient delivery of public services” was insufficient to justify intrusion on the applicant’s rights under the Fourth Amendment.
Not a safety-sensitive position. Second, the city argued that the solid waste coordinator position was a safety-sensitive position for two reasons: (1) the coordinator must occasionally supervise a waste transfer station; and (2) the coordinator gave presentations to school-aged children. With respect to the coordinator’s supervision of a waste transfer station, the court found the city’s argument without merit. There was no evidence that the coordinator had to be physically present at the facility while filling in for the transfer station manager. Moreover, the evidence demonstrated that the coordinator was not actively involved in safety-related duties around the transfer station. The court further noted that no evidence indicated that on-the-job intoxication was a significant problem among employees at the transfer station, or that accidents and property damage in the transfer station were attributable to alcohol or drug use.
The notion that the solid waste coordinator’s duty to make presentations to school-aged children rendered the position as safety-sensitive was also unavailing. First, the coordinator has never actually made such a presentation. Additionally, the undisputed evidence showed that the coordinator had no responsibilities to the children to whom presentations were made and that the students’ teachers would be in the classroom during the presentations. Because there was no evidence that the coordinator was entrusted with the supervision, safety, or security of children; or that he or she would have unfettered, unsupervised access to the children, the court rejected the contention that the solid waste coordinator position was a safety-sensitive position on this basis.
Finally, the court rejected the city’s argument that it should find that suspicion-less drug testing of applicants for employment, as opposed to current employees, was reasonable based on the DC Circuit’s decision in Willner v Thornburg. The applicants in Willner had consented to extensive background investigations by the FBI as candidates for Justice Department attorneys, while the applicant here was subjected only to routine reference and arrest history checks. Further, the court found no Eleventh Circuit precedent that held that government can violate a person’s rights under the Fourth Amendment so long as prior notice of the impending violation is given. Accordingly, the court found no reason to adopt the distinction urged by the city between applicants and employees.
DOL ARB affirms ALJ finding that subject matter jurisdiction was lacking over contractor’s administrative complaint challenging OFCCP audit activity
Ruling that only the OFCCP has the authority, under the laws enforced by that agency, to file a complaint with the Department of Labor’s (DOL) Office of Administrative Law Judges (OALJ), the department’s Administrative Review Board (ARB) has affirmed an administrative law judge’s (ALJ) dismissal of a complaint filed by Entergy Services, Inc and related companies which asserted that the OFCCP engaged in unconstitutional audit activities. The plaintiffs had sought a declaratory judgment that the agency violated the contractor’s Fourth Amendment rights by subjecting it to numerous audits without probable cause. But the ARB agreed with the ALJ’s decisions in this and another case, made just months apart in 2012, that federal contractors are not authorized to initiate administrative actions against the OFCCP. (Entergy Services v OFCCP, ARB No 13-025, May 19, 2014, posted June 5, 2014, Igasaki, P., Corchado, L. and Edwards, L.)
On October 26, 2012, six subsidiaries of Entergy Corporation, including lead plaintiff Entergy Services, Inc (collectively, “Entergy”), a Delaware corporation headquarted in New Orleans, filed an administrative complaint with the DOL’s Office of Administrative Law Judges (OALJ), seeking declaratory relief from compliance review searches scheduled by the OFCCP pursuant to the laws enforced by the agency — Executive Order (EO) 11246, Section 503 of the Rehabilitation Act and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974. In their complaint, the plaintiffs asserted that the manner in which the OFCCP selected Entergy establishments for compliance reviews violated their Fourth Amendment rights to be free from “unreasonable searches and seizures.”
ALJ ruling. On November 27, 2012, ALJ Stephen Purcell dismissed the complaint for lack of subject matter jurisdiction (ALJ No 2013-OFC-1). For reasons similar to those cited in his September 17, 2012 ruling in U.S. Security Associates, Inc v OFCCP (ALJ No 2012-OFC-4), the ALJ determined that the contractor’s arguments asserting that the OALJ had subject matter jurisdiction over the action, pursuant to the Administrative Procedure Act and the regulations governing the adjudication of OFCCP matters before the OALJ, were unavailing.
U.S. Security Associates decision. In U.S. Security Associates, the ALJ ruled that the OALJ obtains the regulatory authority to adjudicate an OFCCP dispute only upon the filing of an administrative complaint by the OFCCP through the Office of the Solicitor under 41 CFR Section 60-30.5, and therefore the OALJ did not have subject matter jurisdiction to entertain an administrative complaint filed by the target of an OFCCP compliance review seeking declaratory relief from that compliance review. On June 20, 2013, the ARB dismissed as moot the contractor’s appeal of the ALJ’s decision in U.S. Security Associates due to a settlement reached by the parties (ARB No 13-003). The Entergy plaintiffs are represented by the same law firm as plaintiffs in U.S. Security Associates.
ARB ruling. On December 12, 2012, Entergy appealed the ALJ’s ruling to the ARB. Deciding that the ALJ correctly determined that Entergy’s complaint for declaratory relief was not properly before the OALJ, the ARB found no authorization in the laws enforced by the OFCCP or their implementing regulations empowering any party other than the OFCCP, represented by the DOL Solicitor’s Office, to file a complaint under these laws.
Specifically, the prehearing procedures set forth in the Rules of Practice and Procedure for Administrative Proceedings pertaining to the laws enforced by the OFCCP (at 41 CFR Section 60-30.5(a), incorporated at 41 CFR Section 60-250.65(a) – (b) and 41 CFR Section 60-741.65(a) – (b)), provide that:
“The Solicitor of Labor, Associate Solicitor for Labor Relations and Civil Rights Regional Solicitors and Regional Attorney upon referral from the Office of Federal Contract Compliance Programs, are authorized to institute enforcement proceedings by filing a complaint and serving the complaint upon the contractor which shall be designated as the defendant. The Department of Labor, OFCCP,  shall be designated [as] plaintiff.”
This section expressly grants only the OFCCP the authority to file a complaint, the ARB pointed out, citing in a footnote the ALJ’s decision in U.S. Security Associates. In addition, the ARB noted that the same is true for the rules governing expedited hearings (41 CFR Section 60-30.32(a)). Accordingly, the complaint for declaratory relief that Entergy filed was not properly before the OALJ because the events in this case did not show that the Solicitor of Labor, or her designate, instituted an administrative enforcement proceeding by filing a complaint with OALJ as required by 41 CFR Section 60-30.5.
It’s all about enabling employees to work: Refusing to extend six-month maximum leave policy is not a failure to accommodate
By Joy P. Waltemath, J.D.
The Tenth Circuit ruled today that by refusing to extend its “inflexible” six-month maximum sick leave policy to an assistant professor under a one-year contract who had already been granted six months of paid leave, a university did not violate the Rehab Act. Unquestionably the teacher was capable, qualified, and disabled within the meaning of the Act – she had been diagnosed with cancer and was undergoing treatment, and her physician said she required additional time off – but unquestionably she wasn’t able to perform the essential functions of her job. Requiring an employer to keep a job open for so long doesn’t qualify as a reasonable accommodation, said the court, pointing out that reasonable accommodations “are all about enabling employees to work, not to not work” (Hwang v Kansas State University). What are the takeaways for employers?
1. Extending leave must make it possible to perform essential functions. Here you have a sympathetic plaintiff unquestionably “suffering a wretched year.” At the same time, the university arranged for long-term disability benefits, but the teacher believed that it had effectively terminated her employment and sued. Obviously an employee who needs a brief absence from work for medical care may still be able to perform the essential functions of the job, and allowing brief absences may be a legally required reasonable accommodation if those absences make it possible for an employee to perform essential job duties. So what’s the difference between leave that makes it possible for an employee to perform her essential job functions, and leave that makes it impossible to perform those duties – and accordingly isn’t a reasonable accommodation?
2. Employers are “not safety net providers.” The court cited the nature of the job itself, the nature and length of the leave, and the impact on fellow employees as criteria to determine whether an extended leave is reasonable. However, it went on to question how an employee’s absence for six months — “an absence in which she could not work from home, part-time, or in any way in any place” — could be consistent with performing the essential functions of almost any job. Even if it were, the court was unconvinced that “requiring so much latitude from an employer” would qualify as a reasonable accommodation. “The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work — not to turn employers into safety net providers for those who cannot work.”
3. Any accommodation must be reasonable and enable employee to perform essential functions. Unwilling to buy the teacher’s argument that the university’s inflexible maximum sick-leave policy necessarily violated the Rehab Act, the court took apart her argument. She cited the EEOC Enforcement Guidance Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, which says:
If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its “no-fault” leave policy to provide the employee with the additional leave, unless it can show that: (1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or (2) granting additional leave would cause an undue hardship.
To the court, the language of the first sentence, on which the teacher relied, clearly indicated that the two numbered conditions would come into play only after it was clear the leave policy modification was a reasonable accommodation necessary to ensure the employee could perform his essential job functions. Plus, it went on to note that in the same agency guidance, the EEOC expressly stated that an employer does not have to retain an employee unable to perform her essential job functions for six months just because another job she can perform will open up then, “because six months is beyond a reasonable amount of time.”
4. If long enough, inflexible leave policy can be a good thing. There was nothing inherently discriminatory in the fact the university’s six-month leave policy was “inflexible”; in fact, such a policy can protect rather than impair the rights of employees with disabilities — by ensuring their leave requests “aren’t secretly singled out for discriminatory treatment, as can happen in a leave system with fewer rules, more discretion, and less transparency,” reasoned the court. But it was mindful that inflexible leave policies are not categorically without fault, either. “Policies providing unreasonably short sick leave periods, for example, may not provide accommodation enough for employees who are capable of performing their jobs’ essential functions with just a little more forgiven absence.”
Here, the leave policy here granted all employees a full six months’ sick leave — more than sufficient in nearly any case — and all the employee alleged along the lines of unequal enforcement was the fact that some employees were eligible for sabbaticals. But she alleged no facts suggesting that sabbatical-eligible employees included untenured faculty on year-to-year contracts with seniority similar to her own. This wasn’t enough to raise an inference of discrimination to counterattack the leave policy, concluded the court.
By Pamela Wolf, J.D.
It has long been well-established that women face economic challenges rooted in workplace issues that are predominantly related to being a working woman while still juggling all the family responsibilities that typically fall more on the shoulders of women than on those of men. Could it be that Congress is getting serious about looking for ways to resolve some of those challenges and the resulting burdens that fall so heavily on women?
On Tuesday, May 21, Senator Tom Harkin (D-Iowa) Chair of the Senate Health, Education, Labor and Pensions (HELP) Committee pointed to both the successes of women in the American workplace and the challenges that still remain as he kicked off a hearing on the topic: “Economic Security of Working Women: A Roundtable Discussion.”
“America’s working women have made incredible strides in the workplace,” Harkin said in a statement. “And as women succeed, America succeeds and our economy succeeds. But huge challenges remain. Too many working women are stuck in poor-quality, low-wage jobs, living in or near poverty, struggling to make ends meet.”
Stubborn challenges remain. Foreshadowing comments that would be made by witnesses invited to address the committee, Harkin continued: “In addition, even as women have entered the workforce, they are still usually the primary caregivers for children and elders. Yet our workplaces have not kept up with the changing times, and most women do not have access to the supports they need to be successful workers and caregivers.”
The senator also pointed to the challenges that women face during pregnancy: “While more and more pregnant women want to, or must, work throughout their pregnancies, women who are pregnant often risk losing their jobs — despite existing legal protections — or face employers that refuse to provide the most basic accommodations.”
Commenting on the challenges faced by women workers who need to take leave from work, Harkin said: “Many working women still have no access to any caregiving leave, like maternity leave, at all, and most lack access to paid leave. Forty percent of workers are still not covered by the Family and Medical Leave Act (FMLA). … Even women who are fortunate enough to be covered by the FMLA are often forced to return to work too soon, because they cannot afford to take the unpaid leave that the law provides.”
Senator Harkin also pointed to challenges women face when a child gets sick or a parent needs to be accompanied to the doctor, noting that 40 million Americans do not even have a single paid sick day they can use to take care of themselves or a sick family member. “Some of these workers even risk losing their jobs for missing a single day of work,” he said. “As a result, these working caregivers constantly face agonizing choices. Do you stay home with a sick child, knowing you are putting your job and your income at risk? Or do you leave a sick child unattended to ensure that you keep your job and your income?
Perhaps the greatest challenges are faced by low-wage workers, who often have “impossible schedules that threaten their family’s well-being,” according to Harkin. “Workers cannot get full-time hours, or face widely varying weekly schedules. Many receive their schedules at the last minute or are kept constantly on-call, with little to no control over their working hours. Finding reliable child care or sticking to a budget becomes impossible under these circumstances.”
How can these challenges be mitigated? The roundtable discussion addressed these and other challenges faced by women in the workforce and offered sometimes differing perspectives on how best to make workplaces more responsive to the needs of women.
A panel of eight women were invited to share their views with the HELP Committee: Neera Tanden, President, Center for American Progress, Washington, D.C.; Ellen Bravo, Executive Director, Family Values at Work, Milwaukee, Wis.; Amy Traub, Senior Policy Analyst, Demos, New York, N.Y.; Fatima Goss Graves, Vice President for Education and Employment, National Women’s Law Center, Washington, D.C.; Lori Pelletier, Executive Secretary-Treasurer, Connecticut State Federation of Labor, Rocky Hill, Conn.; Armanda Legros, Low-wage worker, Jamaica Estates, N.Y.; Gayle E. Troy, Human Resource Manager, Globe Manufacturing Company, LLC, Pittsfield, N.H.; and Rhea Lana Riner, President, Rhea Lana’s, Inc., Conway, Ark.
The recommendations by two particular panelists underscore whether the challenges faced by women should be addressed by the federal government through mandates requiring minimum protections and/or benefits, or through employer incentives instead that are aimed to create a workplace in which the needs of women would be met while at the same time the burdens placed on business operations would be minimized.
Public policy solutions. Neera Tanden, President of the Center for American Progress, an independent, nonpartisan educational institute dedicated to improving the lives of all Americans through progressive ideas and action, suggested several public policy solutions that would likely have an immediate and positive impact in the lives of working women.
“At the federal level, mandating paid sick days, paid family and medical leave, and a more flexible workplace, and strengthening pay equity legislation could empower women to meet their full potential,” Tanden said in her written testimony. She also suggested that in light of the fact that almost two-thirds of minimum-wage workers and 70 percent of tipped minimum-wage workers are women, “making the minimum wage a living wage would help close the pay gap and lift millions of Americans out of poverty.”
According to Tanden, fostering policies that permit women “to be full participants in today’s workforce” will boost the bottom line of businesses and also ensure America’s competitiveness in the global economy. She suggested that the following policy solutions would empower women to meet their full potential:
- Paid sick days, as proposed in the Healthy Families Act, and paid family and medical leave insurance, as proposed in the Family and Medical Insurance Leave Act, or FAMILY Act
- Pay equity, as proposed in the Paycheck Fairness Act
- High-quality, affordable early childhood education and universal pre-K
- A higher minimum wage and tipped minimum wage
Incentivizing employers. Gayle Troy, Human Resources Manager at Globe Manufacturing Company, LLC, appearing on behalf of the Society for Human Resource Management (SHRM), focused on a solution that would be flexible enough to accommodate the needs of employees while still providing desired predictability and stability that support business operations.
“SHRM and its members believe the United States must have a 21st century workplace flexibility policy that reflects the nature of today’s workforce, and that meets the needs of both employees and employers,” Troy stated in her written testimony. “It should enable employees to navigate their work and personal needs while providing predictability and stability to employers. Most importantly, such an approach must encourage employers to offer greater flexibility, creativity and innovation to meet the needs of their employees’ families.”
Troy pointed to a set of five principles that SHRM developed in 2009 to help guide the creation of a new workplace flexibility public policy. “In essence, SHRM believes that all employers should be encouraged to provide paid leave for illness, vacation and personal days to accommodate the needs of employees and their family members,” she said. “In return for meeting a minimum eligibility requirement, employers that choose to provide paid leave would be considered to have satisfied federal, state and local requirements and would qualify for a statutorily defined ‘safe-harbor.’” The five SHRM principles are:
Shared needs: A “safe-harbor” standard where employers voluntarily provide a specified number of paid leave days for employees to use for any purpose, consistent with the employer’s policies or collective bargaining agreements (CBA). A federal policy should:
- Provide certainty, predictability, and accountability for employees and employers.
- Encourage employers to offer paid leave under a uniform and coordinated set of rules that would replace and simplify the confusing — and often conflicting — existing patchwork of regulations.
- Create administrative and compliance incentives for employers that offer paid leave by offering them a safe-harbor standard that would facilitate compliance and save on administrative costs.
- Allow for different work environments, union representation, industries, and organizational size.
- Permit employers that voluntarily meet safe-harbor leave standards to satisfy federal, state, and local leave requirements.
Employee leave: Employers should be encouraged to voluntarily provide paid leave to help employees meet work and personal life obligations through the safe-harbor leave standard. A federal policy should:
- Encourage employers to offer employees some level of paid leave that meets minimum eligibility requirements as allowed under the employer’s safe-harbor plan.
- Allow the employee to use the leave for illness, vacation, personal, and family needs.
- Require employers to create a plan document, made available to all eligible employees, that fulfills the requirements of the safe harbor.
- Require the employer to attest to the DOL that the plan meets the safe-harbor requirements.
Flexibility: A federal workplace leave policy should encourage maximum flexibility for both employees and employers; it should:
- Permit the leave requirement to be satisfied by following the policies and parameters of an employer plan or CBA, where applicable, consistent with the safe-harbor provisions.
- Provide employers with predictability and stability in workforce operations.
- Provide employees with the predictability and stability necessary to meet personal needs.
Scalability: A federal workplace leave policy must avoid a mandated one-size-fits-all approach and instead recognize that paid leave offerings should accommodate the increasing diversity in workforce needs and environments; it should:
- Allow leave benefits to be scaled to the number of employees at an organization; the organization’s type of operations; talent and staffing availability; market and competitive forces; and collective bargaining arrangements.
- Provide pro-rated leave benefits to full- and part-time employees as applicable under the employer plan, which is tailored to the specific workforce needs and consistent with the safe harbor.
Flexible work options: Employees and employers can benefit from a public policy that meets the diverse needs of the workplace in supporting and encouraging flexible work options such as telecommuting, flexible work arrangements, job sharing, and compressed or reduced schedules. Federal statutes that impede these offerings should be updated to provide employers and employees with maximum flexibility to navigate work and personal needs. A federal policy should:
- Amend federal law to allow employees to manage work and family needs through flexible work options such as telecommuting, comp time, flextime, a part-time schedule, job sharing, and compressed or reduced schedules.
- Permit employees to choose either earning compensatory time off for work hours beyond the established workweek, or overtime wages.
- Clarify federal law to strengthen existing leave statutes to ensure they work for both employees and employers.
The next step in the quest to help women experience greater economic success remains to be seen. For his part, however, Harkin had this to say: “We know from successful policies in cities and states around the country that it is possible to implement stronger measures to help working women succeed. Raising the minimum wage, allowing women to earn paid sick days and paid family and medical leave, ensuring equal pay, requiring accommodations for pregnant workers, and allowing workers to have input into their work schedules — these are winning policies for everyone. Families benefit. Businesses will benefit from a more loyal and healthier workforce. And our economy benefits when women workers have steady employment and a steady paycheck.”
Perhaps the HELP Committee, as a result of the hearing, will prompt Congress to take much-need action to give working women more help in the workplace — even a little help, regardless of the approach, will likely go a long way.
In a memorandum issued May 21, the NLRB announced that it has entered into a program with the Occupational Safety and Health Administration (OSHA) to accept referral of complaints that would otherwise be time-barred under the OSH Act.
During the OSHA intake process, those seeking to assert an OSHA whistleblower claim often learn that their claims are untimely under Section 11(c) of OSH Act, which establishes only a 30-day statute of limitations. According to the memo, OSHA estimates that this happens in 300 to 600 cases each year. The Board states that “it is likely that some of these cases may also raise claims arising under the National Labor Relations Act; for example, instances of employer retaliation for group complaints concerning unsafe working conditions.”
To address these situations, the agencies agreed to notify all parties who file an untimely whistleblower charge of their right to file a charge with the NLRB. OSHA personnel will advise the parties they may file a charge with the Board and that the Board’s time limit to file (6 months) is longer than OSHA’s (1 month). OSHA personnel will be providing parties with contact information for the appropriate NLRB Field Office and also a toll-free number, 1-844-762-6572, to the NLRB.