Category Archives: Discrimination

Hiring Focused on Character

Discrimination, Hiring,

I often hear the general perception by business owners and managers that employees under the age of 30 have a lousy work ethic or other character deficiencies. They complain about entry-level employees who aren’t interested in paying their dues and are convinced they are entitled to move into the corner office on the day they are hired. I also hear about inappropriate dress, lack of loyalty and attendance woes among young people. But I know many “kids” under 30 (my 26-year-old son among them) who are incredibly motivated, hard-working, smart and willing to pay their dues.

Throughout my 32 years of practicing employment law full-time, I’ve also heard lots of similar stereotypical complaints about women in the workplace (“they can’t get along with other women—it’s always a cat fight” or “they just quit when they have children”). And sometimes, I have unfortunately been privy to pure misogyny, racism, ageism, and other bigotry when discussing problem employees.

I have a radical observation from more than 30 years of practicing employment law: Character is not generational, racial or gender-specific. I’ve worked with some terrific young employees and some terrible older ones, some unbelievably hard-working women and some slacker men, some brilliant minorities and some completely ignorant WASPs. The real debate is not about an employee’s age, race, gender or any other data point over which the employee has no control, but the employee’s individual character. So I encourage employers to focus on character more and stereotypes less (actually, not at all).

As an employer, I know you want to fill any open position with an employee who will exhibit responsibility, honesty, loyalty, enthusiasm, flexibility, initiative, dependability, civility, judgment and a distinct sense of right and wrong, regardless of their gender, ethnicity, age, or other protected characteristic.

You won’t find nearly as many business books that focus on character instead of generational conflict or the “downfalls” of diversity. The subject of character often sounds old-fashioned and faintly religious.

But all of us have reluctantly dealt with people with poorly-developed values: gossips, drama queens, whiners, liars, cheats, etc. There is no reason to have those kinds of people working for you and it is not illegal to refuse to hire them. But you have to be able to spot poor character in your hiring process to avoid bringing this poison into your workplace.

To hire better employees, first identify the character traits that are most important to you. Think back about what really disappointed or angered you about the personalities of unsuccessful employees in the past. Were they always tardy? Then dependability is very important to you. Did they steal company time by shopping on the internet on the company computer for hours a day? Then honesty and productivity are probably high on your list. Did your former employee pot-stir, pitting employees against one another? Then you are looking for someone who treats everyone with respect and doesn’t enjoy gossip.

Design an employment process that doesn’t just focus on job skills, but also zeroes in on the character traits that matter most to you. Ask open-ended questions about values in the interview, but don’t rely solely on your ability to judge character. No hour-long interview is going to tell you everything about an applicant’s character.

But you can find out some aspects of an applicant’s character if you ask about:

Continue reading Hiring Focused on Character →

Can I Drug Test My Texas Employees for Marijuana?

Discrimination, Drug Testing, Forms and Policies, Medical, , , , ,

As 2020 begins, many Texas employers are wondering if they can still drug test their employees for marijuana use. Several states have legalized recreational marijuana and most states allow medical marijuana. So what is a Texas employer to do?

After all, Texas sort of, kinda, decriminalized weed in the 2019 legislative session. When they legalized hemp because it is a drought-resistant agricultural crop, the Texas Legislature effectively said that cannabis with less than 0.3 percent concentration of THC, the psychoactive ingredient that gets you high, is “legal hemp”, while anything above that threshold is illegal marijuana.

However, making the determination of THC concentrations takes sophisticated equipment that the police departments and private testing labs don’t have yet. Many Texas police departments and district attorneys have announced they are not even bothering to prosecute possession of use of small amounts of marijuana. Therefore, it is, for all practical purposes, very difficult to determine if your employees are engaged in legal or illegal activities when it comes to weed.

In addition, the Texas Legislature expanded “compassionate use” (medical marijuana) in Texas, so that specialty doctors can prescribe medical marijuana to treat multiple sclerosis, Parkinson’s disease, ALS, terminal cancer, autism, and many kinds of seizure disorders. Past state law only allowed those very few patients diagnosed with intractable epilepsy to be prescribed medical cannabis products, which in Texas may only contain low levels of THC. Now, many more of your employees may be legally prescribed medical marijuana and you have to worry about violating the Americans with Disabilities Act when testing for marijuana.

Finally, CBD oil, which is a hemp-derived product, is legal in Texas and is being sold on every street corner. Unfortunately, there is little regulation of CBD products, so they may contain surprise ingredients like THC. The Fort Worth Star Telegram recently reported on lawsuit filed by a CBD consumer against a CBD oil manufacturer because he lost his truck-driving job after testing positive for marijuana when he used CBD oil for his aching back.

So do you as a Texas employer still test for marijuana? Yes, legally you still can. Think of weed like alcohol. It is may be more legal than it was before, but it can still impair your employees’ job performance and judgment, so you are entitled to know if your employee is stoned.

Continue reading Can I Drug Test My Texas Employees for Marijuana? →

“Go Back” Comments Are Unlawful in Workplace

Discrimination, Hiring, Immigration, Management, Training, , ,

Telling a person in America to “go back to where you came from” has been considered racist and bigoted for decades in this country founded and built by immigrants, and if you as an employer allow this sentiment to ever be expressed at your business, you can expect a racial or national origin discrimination lawsuit to quickly follow.

Regardless of how the current occupant of the White House talks, the Equal Employment Opportunity Commission (“EEOC”), which actually investigates and prosecutes discrimination/harassment claims, has long told employers:

Ethnic slurs and other verbal or physical conduct of nationality are illegal if they are severe or pervasive and created an intimidating, hostile or offensive working environment, interfere with work performance, or negatively affect job opportunities. Examples of potentially unlawful conduct includes insults, taunting, or ethnic epithets, such as making fun of a person’s foreign accent or comments like, “Go back to where you came from,” whether made by supervisors or by co-workers.

Facts About Employment Rights of Immigrants Under Federal Anti-Discrimination Laws, U.S. Equal Employment Opportunity Commission.

The EEOC didn’t come up with this guidance on its own. It followed dozens of court opinions that examined cases in which an employee was harassed with statements like, “Go back to Africa” addressed to a black worker or “Go back to where you came from” addressed to an employee who appeared to the bigot to have been born somewhere other than America.

For example, our own conservative Fifth Circuit Court of Appeals ruled in a summary judgment appeal in EEOC v. WC&M Enterprises, Inc., 496 F.3d 396 (5th Cir. 2007) that an employee born in India (“Rafiq”), who happened to be Muslim, was entitled to prove he was harassed in a severe and pervasive way when his coworkers and managers said, “Why don’t you just go back where you came from”, started calling him “Taliban,” after September 11, and repeatedly referred to him as an Arab (he was Indian).

Rafiq was told, “This is America. That’s the way things work over here. This is not the Islamic country where you came from.” Rafiq’s supervisor even put in a written warning that Rafiq was “acting like a Muslim extremist” and said he could no longer work with Rafiq because of his “militant stance”. The Fifth Circuit found that a jury could “easily infer that [the coworkers’ and supervisor’s] actions were taken on account of Rafiq’s religion and national origin.”

One way the company tried to defend itself was by saying that it couldn’t have discriminated against Rafiq on the basis of national origin, since the workers were apparently too clueless to understand the difference between India and Saudi Arabia or whichever other Muslim country they mistakenly believed Rafiq was from. “The fact that the coworker ignorantly used the wrong derogatory ethnic remark toward the plaintiff is inconsequential.” LaRocca v. Precision Motorcars, Inc., 45 F. Supp.2d 762, 770 (D. Neb. 1999). The Fifth Circuit agreed and concluded in Rafiq’s case, “It is enough to show that the complainant was treated differently because of his or her foreign accent, appearance or physical characteristics.”

As the Sixth Circuit Court of Appeals has said, telling someone to “go back to where you came from” is “insensitive, ignorant and bigoted.” Williams v. CSX Transportation Co. Inc., 643 F.3d 502 (6th Cir. 2011). It is your responsibility as an employer to make sure that words to that effect aren’t uttered in your workplace, particularly, but not exclusively, if they are said by anyone in management. “The employer is presumed absolutely liable where harassment is perpetrated by the victim’s supervisor.” Nader v. The Brunalli Construction Co., 2009 WL 724597 (D. Conn. 2002).  

So how do you as an employer assure that this kind of discriminatory and harassing talk isn’t heard in your workplace?

Continue reading “Go Back” Comments Are Unlawful in Workplace →

Firing For Abortion is Discrimination

Discrimination, Employee Rights, Termination, , ,

Since abortion laws are such a hot topic right now, employers should be warned: firing a woman for obtaining an abortion is discrimination.

The Pregnancy Discrimination Act (“PDA”), which amended the federal discrimination law, Title VII, prohibits employers from taking adverse action against an employee “because of or on the basis of pregnancy, childbirth or related medical conditions”. The EEOC and the courts who have examined this question agree that this definition includes protection for women who chose abortion.

The Equal Employment Opportunity Commission guidance on the PDA states as follows:

Title VII protects women from being fired for having an abortion or contemplating having an abortion. . . . Title VII would similarly prohibit adverse employment actions against an employee based on her decision not to have an abortion. For example, it would be unlawful for a manager to pressure an employee to have an abortion, or not to have an abortion, in order to retain her job, get better assignments, or stay on a path for advancement.

While our Fifth Circuit Court of Appeals has not ruled on this question, the most recent court to examine this issue is a federal district court in Louisiana, which answers to the Fifth Circuit. In Ducharme v. Crescent City Deja Vu, LLC (E.D. La. May 13, 2019)(emphasis added), last week the judge plainly stated:

[A]n abortion is only something that can be undergone during a pregnancy. Title VII requires that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes.” 42 U.S.C.A. § 2000e(k). A woman terminated from employment because she had an abortion was terminated because she was affected by pregnancy.

The judge in Ducharme found support for this decision in two earlier appellate cases. Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 364 (3rd Cir.), order clarified on other grounds, 543 F.3d 178 (3rd Cir. 2008) (“Clearly, the plain language of the statute, together with the legislative history and the EEOC guidelines, support a conclusion that an employer may not discriminate against a woman employee because she has exercised her right to have an abortion. We now hold that the term ‘related medical conditions’ includes an abortion.”); Turic v. Holland Hosp., Inc., 85 F.3d 1211, 1214 (6th Cir. 1996) (“Thus, the plain language of the statute, the legislative history and the EEOC guidelines clearly indicate that an employer may not discriminate against a woman employee because ‘she has exercised her right to have an abortion.’).

There is another important lesson in this case besides understanding that abortion cannot play any role in an employment decision. The lesson for business owners, managers and supervisors is to think before you speak and keep your strong opinions about sensitive topics like abortion out of the workplace.

Even though the judge’s opinion acknowledged that a woman choosing abortion is protected under Title VII, the ex-employee in Ducharme did not prevail on her claim against her employer in part because she failed to demonstrate that her employer actually fired her for the abortion instead of the on-the-job drinking. A significant part of the court’s reasoning was based on the fact that the employer who did the firing, Ms. Salzer, did not actually demonstrate an anti-abortion bias:

Perhaps most fatal to plaintiff’s pregnancy discrimination claim, however, is the complete absence of any support for any alleged anti-abortion animus by Ms. Salzer. Here, it is uncontroverted that Ms. Salzer had never said anything about abortion or religion to Ms. Ducharme at any time during their 18-month relationship. Ms. Ducharme does not dispute that when she informed Ms. Salzer that she was planning on undergoing an abortion, Ms. Salzer did not attempt to talk her out of it and did not say that she disapproved of the decision. There is no evidence that prior to that, Ms. Salzer had ever said anything to suggest to Ms. Ducharme that she would disapprove of the abortion. Ms. Salzer had never said anything political about abortion. Ms. Ducharme did not think of Ms. Salzer as religious.

So the employer did not:

  • Say anything about abortion or religion to Ms. Ducharme at any time during the 18 months Ms. Ducharme worked there;
  • Try to talk Ms. Ducharme out of her decision to have an abortion;
  • Express disapproval about Ms. Ducharme’s decision;
  • Generally talk about her religious or political views in the workplace.

Consider how differently this case could have gone if the employer was a known abortion opponent who lectured his/her employees on the evils of abortion, strongly objected when an employee asked for time off for an abortion and then fired that employee soon thereafter. That employer’s words and actions on this sensitive medical, religious and political issue would definitely come back to bite the employer in a discrimination case.

Or consider the flipside. What if the employer were very strongly in favor of abortion rights and did not want a top-performing female employee to lose any work time to pregnancy and a maternity leave? That employer’s statements encouraging the employee to end the pregnancy “for the good of the business” and to increase the employee’s chances of advancement could also be strong evidence in a pregnancy discrimination case.

The lesson is that your workplace is not the right place for a boss to pontificate on religious and political hot topics. As an employer, you can be you without hostility or stridency towards who your employees are or what they believe. Successful leaders create more welcoming, tolerant workplaces and give fewer lectures.

When an Employee’s Social Security Number is Incorrect (or Fake)

Discrimination, Documentation, Hiring, Immigration,

In 2019, the Social Security Administration (“SSA”) is again starting to send “No Match” letters after a seven-year hiatus to employers who reported payroll taxes for an employee under an incorrect (or fake) Social Security number.

What are the legal do’s and don’ts when the company receives an “Employer Correction Notice” (more commonly known as a No Match letter) from the SSA or otherwise finds out that an employee’s Social Security number isn’t accurate?

  1. Don’t overreact. There are a number of reasons that an employee’s Social Security number may have been reported incorrectly, the most common being a transposition of numbers in the company’s system or a name change. Your responsibility as an employer is to carefully address this matter so you don’t violate any discrimination laws, but you also protect the company now that you know there is a problem.
  2. Don’t ignore. You have to act in response to a No Match letter or other knowledge that a Social Security number is invalid. But what actions you need to take should be discussed with your employment lawyer, who you should call immediately upon receipt of the No Match letter.
  3. Don’t fire anybody (yet). The letter itself will say, “You should not use this letter to take any adverse action against an employee, such as laying off, suspending, firing or discriminating against that individual just because his or her name or SSN does not match our records.”
  4. Don’t confuse the Social Security Administration with Immigration and Customs Enforcement (ICE). No match letters come from SSA and must be addressed through the SSA system. There may be a connection between the incorrect Social Security number and the employee’s eligibility to work in the United States, but you are a long way from making that determination yet when you have just received the No Match letter. On the other hand, ICE may regard a failure on the part of the company to act correctly in response to a No Match letter as an indication of guilt in employing undocumented workers, which is why having an employment lawyer walk you through this process is essential.
  5. Do check your records. Make sure the mistake is not on your end—check that you correctly reported the name and Social Security number that your employee provided to you. If the mistake was yours, notify SSA of the correction.
  6. Do ask the employee to address the problem. After you confirm that the mistake is not on your end, you need to notify the employee in writing that he/she has the responsibility to clear up any discrepancy with SSA by a reasonable deadline (at least 90 days).  Advise your employee that failure to act immediately, to provide the corrected documents in a reasonable time or to provide a good-faith explanation of the problem could later be grounds for termination.
  7. Don’t make an employment eligibility decision yet. There is a dangerous tendency for Texas employers to suspect a Hispanic employee with an incorrect Social Security number might be ineligible to legally work in the United States. This bias could quickly get you sued for discrimination. Give every employee with a mistaken Social Security number a chance to correct that mistake through the SSA procedures. Don’t require an employee to fill out a new I-9 employment eligibility form until the SSA procedure is complete and then only if the employee used the incorrect Social Security number on the first I-9 that the employee filled out.
  8. Don’t turn a blind eye to an affirmative statement of ineligibility by the employee. On the other hand, employees will sometimes tell you when confronted with Social Security number mistake that the employee doesn’t have a Social Security number. Your response should still be, “Talk to SSA and get this corrected.” But if the employee actually says, “I’m not in the United States legally and can’t get a Social Security number because I’m not eligible to work here,” you have to take that admission of ineligibility to work seriously. There is a requirement that employers must terminate any employee immediately upon receiving actual knowledge that the employee is not authorized to work, such as when the employee admits to having submitted false documents for I-9 purposes or to entering the country illegally and never applying for a work permit. This is a red flag warning to call your employment attorney.
  9. Do consider if you need to adopt verification procedures at time of hiring. The SSA provides a verification service that you can use to check Social Security numbers for payroll purposes only (not I-9 purposes) at the time of hiring. Many background checking services will also offer this as part of their criminal background check. But if you are going to start verifying Social Security numbers with new hires, you must be consistent and verify every single employee to whom you make a job offer or your inconsistency can be considered discrimination.
  10. Don’t mistake SSA verification for E-Verify. E-Verify is the federal database for verifying employment eligibility for I-9 purposes. This is where you can find out if your employee really is legal to work in the United States. However, at the present time, there are so many red-tape and technical problems with E-Verify, which has been known to mistakenly block eligible workers, that I do not recommend that employers enroll in that system if you don’t have to (enrollment is mandatory for some employers, such as federal contractors).

Employees Secretly Recording Workplace Conversations

Discrimination, Documentation, Employee Rights, Forms and Policies, Investigation, Personnel Policies, Privacy, , , , , , , ,

Is it legal for one of your employees to secretly record your conversations with that worker for the employee to use as evidence in a discrimination case? If you are a Texas employer, the answer is “yes”.

Texas is a “one-party” consent state, meaning that as long as one party to the conversation knows about the recording, the recording is legal. This can lead to your employee secretly starting the video app on his smartphone in his pocket just before he walks into your office for a disciplinary meeting. He knows the conversation is being recorded, so as the supervisor, you don’t have to be informed in a one-party consent state like Texas.

More than 30 states have the one-party consent rule, while California, Washington, Florida and a few other states require that every person being recorded give permission to the recording. These “all consent” states make it impossible for a supervisor to be secretly taped when talking to an employee. Making a recording without permission in one of those all consent states can lead to both criminal liability and exclusion of the tapes as evidence in the employee’s discrimination or other lawsuit.

In Texas, however, when an employer is taped, the recordings can be material evidence when an employee sues for discrimination. The Houston Chronicle reported in 2011 that one-third of the discrimination complainants who reached out the Equal Employment Opportunity Commission office in Houston brought audio tapes from their workplace to play for the EEOC investigators.

If there is a recording with you as a supervisor using a racial slur, firing an older employee while saying that the company needs “fresh and energetic workers” or suggesting to a subordinate that he/she can expect a raise if the employee will accompany you to a hotel, you might as well get your checkbook and pen out now to facilitate the inevitable settlement.

Besides the obvious – THINK BEFORE YOU SPEAK, here are some other steps you as an employer can take to protect yourself and the company from employees taping all of your interaction:

  • Adopt a written policy banning recording: As of June 2018, the National Labor Relations Board has newly declared that employers may prohibit employees using recording devices and cameras at work. This is a change from a 2015 NRLB opinion that such policies had a chilling effect on employees asserting their rights to document poor working conditions. In 2018, it was decided that no-photography/no-recording rules have little impact on NLRA-protected rights and could actually improve working conditions by forcing supervisors and subordinates to have open discussions and exchanges of ideas.
  • Ask employees if they are recording: Before you have a hard discussion with an employee, such as a disciplinary warning, ask the employee if he/she is recording the conversation. Make a written note of his response (juries don’t like liars who produce recordings when they stated they weren’t taping). You can remind the employee about the company policy prohibiting such recordings. Ask the employee to set his phone on your desk so you can assure that he isn’t recording or, even better, have him leave it at his desk before coming into your office.
  • Be careful about disciplinary actions for recording: If an employee does record in your workplace, don’t automatically warn or fire that employee even if it violated your policy. You need to know what the employee recorded, so ask to listen to the tapes. If the employee did record or photograph unsafe workplace conditions, sexual propositions, racial epithets, etc., then you need to do a formal investigation and apply effective remedial measures to fix the problem the employee’s recordings uncovered. Then carefully decide with your legal counsel whether disciplining the employee who violated your recording policy could lead to an unfair labor practice, retaliation or whistleblower claim.
  • As the employer, don’t audiotape others in the workplace without consent: While you may have video cameras in the non-private areas of your workplace for safety purposes or to monitor productivity, it becomes more complicated to make audio recordings. Wiretapping (recording the conversations of others without consent when you are not a party to the discussion) is illegal under several statutes. So, you would need permission of every employee as well as the consent of every vendor or guest who comes into your business if you were going to wholesale audiotape all the interactions in your workplace. It can be done, but it is complicated to do correctly, and the wiretapping law is easily violated. And personally, in more than 30 years of practicing employment law, I’ve only seen a handful of situations where widespread audio recording was helpful to a lawsuit defense, much less positive employee relations.

Five Steps for Responding Well to Harassment Claims

Discrimination, Employee Rights, Investigation, Sexual Harassment, Training, , ,

Two nooses hanging near a loading dock and racist graffiti on a company truck designed to be seen by the company’s African-American employees will almost certainly lead to an expensive racial harassment lawsuit against a business, but the federal Fifth Circuit Court of Appeals recently sided with an employer who promptly took five comprehensive steps in response to this reprehensible conduct.

In its June 2018 opinion, the Court held that YRC, the employer, responded appropriately to these incidents at its Irving, Texas facility. The opinion gives all employers helpful guidance on how to combat harassment in the workplace. Tolliver v. YRC, Inc. (5th Cir. 2018).

It is important to note that the Court acknowledged that the racist actions were “morally unacceptable” and “reprehensible. But the plaintiffs didn’t allege that the acts were directed specifically toward them and “for the most part, learned about the acts secondhand”. So, the Fifth Circuit did not find that this conduct was sufficiently severe or pervasive enough to change the terms or conditions of employment as to these particular employees, meaning that their personal racial harassment claims weren’t strong to begin with.

But what really mattered to the Court is that the employer took prompt remedial action to protect all employees after these horrifying incidents occurred. The steps YRC followed offer guidance for all employers facing any kind of harassment situation, whether involving racial harassment, sexual harassment, ethnic harassment, etc.

Let’s call these the Five Steps to Responding Well to a Harassment Claim: Continue reading Five Steps for Responding Well to Harassment Claims →

What Can I Say? Giving References in Texas

Discrimination, Hiring, Termination, ,

Just when you thought you’d heard the last of Fired Felicia, you get a call from Felicia’s prospective employer, who is diligently checking Felicia’s references. What can you as an employer in Texas legally say about Felicia?

Employment lawyers like me have been telling employers for years to remain close-lipped, giving only dates of employment, job title, and last rate of pay. Safe, but almost deceptive in its reticence. We advise this taciturn approach because of our fear that you will say too much and say something defamatory.

Why do I have that fear? Because in a small city like Amarillo, or really anywhere in West Texas, we spend a lot of time on the other end of the reference spectrum. Instead of reticent, we are gleefully chatty.

Hiring managers around here will pick up the phone, ask for their friend who works at Felicia’s last employer, and find out all about Felicia’s problem pregnancy, Felicia’s attitude problem, or Felicia’s suspected but unconfirmed alcohol dependency. That’s when my head explodes as an employment lawyer who is trying to keep the company out of legal hot water.

The rules of references must be one of the most misunderstood areas of human resources. But in Texas, it really shouldn’t be that hard. Here are some simple guidelines: Continue reading What Can I Say? Giving References in Texas →

Transgender Woman Protected From Sex Discrimination, Court Decides

Discrimination, Employee Rights, Litigation, Termination, , , , , ,

The U.S. Sixth Circuit Court of Appeals ruled last month that Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against a transgender woman “on the basis of sex” and also ruled that the supervisor’s belief that gender transition “violates God’s commands” is not a defense to employment discrimination.

The Sixth Circuit, which decides federal cases brought in Kentucky, Tennessee, Michigan and Ohio, reviewed the firing of Aimee Stephens from her job at a funeral home in which she had originally worked as a male in the case of EEOC v. R.G & G.R. Harris Funeral Homes (U.S. 2018)

After she was diagnosed with gender identity disorder, Stephens told her boss, Thomas Rost, that she was planning to transition to female. Her boss fired her. Rost stated during the lawsuit that he terminated Stephens’s employment because “he was no longer going to represent himself as a man” and that a person’s sex is “an immutable God-given fit”.

The Sixth Circuit decided, like the Second and Seventh Circuits (covering New York, Vermont, Connecticut and Illinois, Indiana and Wisconsin, respectively) before it, that a company violates an employee’s civil rights if the employer fires that worker on the basis of sex, including sexual orientation and gender identity.

The funeral home where Stephens worked hoped that its termination of her would be protected by the Religious Freedom Restoration Act and the U.S. Supreme Court’s case of Burwell v. Hobby Lobby (U.S. 2014).

However, almost three decades ago. the U.S. Supreme Court had already rejected the argument that a supervisor’s religious squeamishness was sufficient to overcome the civil rights laws. The United States Supreme Court ruled in Employment Division v. Smith (U.S. 1990) that a person may not defy neutral laws of general applicability even as an expression of religious belief. “To permit this,” wrote conservative Justice Antonin Scalia, “would make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

Despite this long-standing Supreme Court precedent, the funeral home argued that the presence of a transgender employee would require Rost to leave his job, because forcing him to work with a transgender person was an infringement of his religious rights and also would “often create distractions for the deceased’s loved ones”. Continue reading Transgender Woman Protected From Sex Discrimination, Court Decides →

Written Policies to Protect Your Business During the Opioids Epidemic

Attendence, Discrimination, Documentation, Drug Testing, Forms and Policies, Medical, , , , , ,

With the current opioids epidemic raging across America, including in the Panhandle of Texas, employers are asking me if they can drug test current employees for prescription medications such as hydrocodone. Can a Texas employer try to prevent a workplace accident or death by testing when opiate use is suspected, or do you just have to hope that employee won’t hurt someone?

You have to consider the Americans with Disabilities Act when deciding if you are going to drug test your employees and how you should react to a positive test. The ADA protects an employee’s rights to lawfully take over-the-counter and prescription drugs to treat a disability.

However, the ADA doesn’t protect current substance abusers. So, since abuse of prescription drugs isn’t protected, how an opiate was obtained, how it is being taken, and if the employee is too impaired to work safely become crucial questions if your employee appears impaired.

Usually, I get a call from an employer about drug testing when an employee is falling asleep on the job, is slurring words, seems disoriented, has difficulty performing routine tasks, and/or is excessively absent, belligerent or erratic. At that point, drug testing may be appropriate, but I have to ask if the employer has laid the groundwork to do the drug testing and to respond appropriately to a positive test.

As with most employment law issues, you have to protect your business with well-written policies long before you are faced with an employee who appears to be high on Vicodin. Continue reading Written Policies to Protect Your Business During the Opioids Epidemic →