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Ask the HR Expert: Employment Law

Posted by NEHRA  July 13, 2009 09:00 AM

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Q. What are the legal obstacles for having a drug and alcohol policy for testing all prospective hire and random testing of current employees? We are a home health care agency and want to make sure that our direct care personnel are free of drugs.

A. As you know, drug and alcohol abuse increases the risk of workplace injury, reduces productivity, leads to increased absenteeism, and creates numerous other costs and risks for employers. You are smart to be concerned about employees’ drug and alcohol abuse, especially where employees are providing health care to clients or patients in their homes. While drug testing can be a useful tool, employers must be careful to ensure compliance with laws such as the Massachusetts privacy statute, M.G.L. ch. 214, § 1B, to avoid invasion of privacy claims. Although Massachusetts does not regulate drug testing by statute, other states – including Connecticut, Maine, Vermont, and Rhode Island – have adopted statutory restrictions on the use of drug testing in the workplace. Before undertaking any drug testing program, you should review the specific state laws governing testing and conform your practices to the legal requirements.

Having a well-designed, thoughtful drug-testing program is key. Employer drug screening programs may take many forms, and occur at different stages of the employment relationship, such as pre-hire, post-accident, random, reasonable suspicion or return-to-work (post-rehabilitation) testing. Again, state law varies regarding when testing is permitted. In Massachusetts, for example, the courts typically balance the employees’ privacy interests against the employer’s business reasons for testing. Applying this balancing test, employers may require pre-hire drug tests for certain positions such as the home health care workers you mentioned. Massachusetts courts have also upheld post-accident testing; for example, you may consider testing any direct care personnel who are involved in a car accident traveling to or from a clients’ home. Random drug testing, on the other hand, is more complicated, and such testing may violate an employee’s right to privacy, unless the employee works in a safety-sensitive or dangerous job, or the employer can show a compelling business reason. You should discuss with your legal counsel whether random drug testing would be permissible for the direct care workers, since this will require an analysis of the specific facts and circumstances. You should also carefully consider what types of tests will be conducted (urinalysis vs. blood test, for example), which lab or testing facility will conduct the tests, where the samples will be drawn, and what the consequences of a positive test result will be. Confidentiality of test results and whether to offer rehabilitation services are also important considerations. A well-drafted drug testing policy should address all of these issues, as well as identify the positions subject to testing.

KRISTA GREEN PRATT


Q. I am temporary employee who was hired for a 90 day period with the chance for permanent hire. I started right before the holidays. I recently found out that I am pregnant and that my chances are good for the full time position. What should I do in regards to telling the client and could they not hire me for that reason?

A. When to inform your employer about your pregnancy is ultimately a personal decision, but you should know that it is unlawful to take adverse employment action against a woman because of her pregnancy (i.e. terminating or refusing to hire). Indeed, to do so would constitute a form of unlawful gender discrimination under both Title VII of the 1964 Civil Rights Act, as amended by the Pregnancy Discrimination Act, and the Massachusetts antidiscrimination statute, M.G.L. ch. 151B. Massachusetts courts have held consistently that employers may not discriminate on the basis of pregnancy, childbirth, and medical conditions related to pregnancy. You may also be entitled to maternity leave under state law.

Your employer may not refuse to hire you into a full-time position solely because of your pregnancy, though the company could decide for legitimate business reasons (such as lack of work or cost) not to do so. If the employee files a complaint alleging discrimination after the pregnancy is made known to an employer, the motivation for any adverse decisions may be scrutinized by a court or the anti-discrimination agency investigating the complaint. Such cases are highly fact-specific and the outcome will depend on such factors as the timing of the adverse decision relative to the employee’s disclosure and whether the decision-maker made any statements showing unlawful pregnancy bias. Prior to disclosing your pregnancy, you should review your company’s policies regarding parental leave and non-discrimination in employment, then determine the best person to tell about the pregnancy (perhaps your supervisor or someone in Human Resources). Armed with the company’s own policies and an understanding of your legal rights, you will be in the best position to ensure that the company follows their policies and the law.

KRISTA GREEN PRATT

Q. I was laid off due to a "reduction in force." The owner claims that I was the "last one hired, so first to be let go", which is untrue. I've been ignored by the employer for a number of months due to a misunderstanding and had the feeling something wasn't right, even though I was the top producer in my position. I went on vacation and when I returned, the locks where changed and my desk was cleared out. I was notified by email that he was letting me go due to a “reduction in force”. He has since hired someone in my position. Is what he did legal?

A. For a valid answer to your question, you need to consult directly with an attorney with experience representing plaintiffs in employment law cases. If you are unsure about how to locate such an attorney, you should consider consulting the attorney referral service operated through either the Boston Bar Association or the Massachusetts Bar Association.

The attorney you consult will ask questions such as these?
• What was the nature of the “misunderstanding” that you believe caused your employer to start ignoring you?
• Were you previously working on an “at will” basis?
• Were you previously working according to an oral or a written contract, and if so, what was the nature of the contract (and did it say anything at all about discharge)?
• Are you a member of a protected category, and if so, is there anything that suggests to you that you have been discriminated against on an unlawful basis?
• Who is the person who replaced you?
• Were others laid off in this reduction in force, and if so, how many of them were there, and who are they?
• Did you receive any paperwork or advance notice related to this reduction in force?
• Were you paid for everything that the company owed you?

In general, an employee working on an “at will” basis can be discharged for any reason that is not prohibited by law. Discharges prohibited by law include those based on prohibited reasons (e.g., race, religion, etc.), those that violate certain public policies, and those that would deprive the employee of compensation already earned. If your employer is providing an explanation for your termination that is not true (e.g., falsely claiming “last hired, first fired”), then that false explanation may be a pretext to cover up an unlawful purpose.

DAVID HENDERSON

Q. I work at a staffing company. We often send employees on short-term assignments that end and as soon as a new assignment that is a match to their skills becomes available we send them on the new assignment. Is the ending of the assignment a "termination" and beginning of the new assignment a "rehire" for I-9 purposes? We could end up having to update and/or re-verify many of our employees 10 or more times a year even if they are a citizen, permanent resident or a long time away from their work authorization expiration date. What can/should we be doing?

A. This is the type of question that you should discuss directly with your company’s lawyer. Your lawyer will want to review directly the type of contract you are using to establish your relationships with the people you send on assignments. This will be the question: if there is no immediate follow on assignment for a particular worker, does not your company’s employment of that worker end each time his immediate assignment ends? If the answer to that is “yes,” then you are re-hiring the person when you later re-confer employment status on him. And if you are re-hiring, then the burden is on you to comply with the rules explained in the U.S. Citizenship and Immigration Services (website: www.uscis.gov) Handbook for Employers.

One set of rules is as follows:
“If the employee’s Form I-9 is a version that is currently acceptable, you rehire the person within 3 years of the date that Form I-9 was originally completed, and the employee is still authorized to work, you may re-verify the employee in Section 3 of the original Form I-9. If the version of Form I-9 that you used for the employee’s original verification is no longer valid, you must complete Section 3 of the current Form I-9 upon re-verification and attach it to the employee’s original Form I-9.”

DAVID HENDERSON

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