July 30, 2014
3800 VerMaas Place, Suite 200
Lincoln, NE 68502 (map)
Phone: 402.475.7011
Toll Free: 800.714.3439

Pre-employment Drug Tests Are Allowed

An employer under federal law is allowed to require its applicants to submit to pre-employment drug tests. Drug tests are not considered medical examinations under the Americans with Disabilities Act (“ADA”), and therefore, the employer does not need to make a conditional offer of employment before the drug test. Note that the drug tests do not include testing for alcohol. Alcohol tests are considered medical examinations and therefore require a conditional offer of employment before testing.

For the employer to deny employment to an applicant the following requirements need to be met under the Nebraska Drug and Alcohol Testing Act:

  • Confirm any positive initial finding of a preliminary drug screen by a gas chromatography-mass spectrometry analysis. As a practical matter virtually all labs performing testing in Nebraska are in compliance with this requirement.
  • The specimen needs to be properly refrigerated and preserved in sufficient quantity for retesting for at least 180 days.
  • A written record of the chain of custody of the specimen from time of collection until the specimen is no longer needed.
  • Employer may not release or disclose results of the test to public other than as required by law or by request of applicant.

A current illegal drug user does not qualify with a disability under the ADA; however, individuals who have been rehabilitated and do not currently use illegal drugs may be protected by the ADA. An employer’s pre-employment drug testing policy should be administered across the board without regard to race or any other protected characteristics under Title VII. It should be applied equally and fairly to all employees.

 

Nebraska Legislature – Proposed Bills Could Affect Employers Withholding Wages

Two Nebraska bills have been proposed which would hold employers more accountable for withholding employee wages and provide employees with more protection. The Business and Labor Committee held hearings on LB 177 and LB 560 on February 4 and has not yet taken further action.

Senator Jim Smith introduced LB 177 which proposes to allow the Commissioner of Labor to seek enforcement of the Nebraska Wage Payment and Collection Act by investigating employers who have violated the act and could assess a civil penalty up to $1,000. This bill gives the Commissioner the power to:

• investigate
• hold hearings and
• subpoena records and witnesses.

If an employer willfully violated the Act, then the Commissioner could hold the employer liable to the affected employee for waiting time damages. These damages would be 50 percent of the wages owed.

This bill would give employees a different avenue to recover unpaid wages. Currently employees can only recover unpaid wages if they bring a civil suit after 30 days of a missed pay day.

In addition the Commissioner would be obligated to report a noncompliant employer to the county attorney. A violation would be Class IV misdemeanor. Under the current law, only a fine can be levied against employers who fail to provide an employee with an itemized statement, if a request was made.

During the hearing Sen. Smith offered an amendment to the proposed bill which would drop the Labor Commissioner’s ability to issue a $1,000 penalty.

The second bill, LB 560 introduced by Senator Heath Mello, proposes amendments to several acts. The bill would amend the Nebraska Fair Employment Act, the Wage and Hour Act, the Nebraska Wage Payment and Collection Act, and the Employee Classification Act.

LB 560 would amend the Nebraska Fair Employment Act to give the Commissioner of Labor the power to hold hearings and subpoena witnesses. It would also require every employer and labor organization that is subject to Fair Employment Act to keep and maintain employment records for five years.

The Nebraska Wage Payment and Collection Act would be amended to require employers give a 30-day notice to an employee before altering the employee’s wages. Currently the Act only requires a 30-day notice before altering an employee’s regular paydays. Also, the bill would require employers to provide an itemized statement detailing wages and the deductions made. This is different from the current rule which requires an employer to only supply an itemized statement after a request from an employee. Senator Mello’s bill would also give the Commissioner of Labor power to investigate and subpoena records and

witness related to enforcement of the Act. It also requires the county attorney to prosecute violators.

LB 560 would also prohibit retaliation by employer against an individual for participating in any investigation or hearing under the Nebraska Wage and Payment Act, The Wage and Hour Act, and the Employee Classification Act.

Several groups supported the two bills during the hearings, while each bill received a letter in opposition. The Labor Commissioner took a neutral position on both bills because more employees would need to be hired to carry out the investigations. A fiscal note is attached to both bills and estimates a cost between $149,148 and $165,345 for each of the next two years.

While LB 560 contains very similar amendments as LB 177, no formal discussions about combining the bills have taken place.

Nebraska employers should keep an eye on these proposed bills, as their effect on employment laws could be severe.

Can an Employee be Disciplined for Engaging in Political Speech in the Workplace?

Election season will be in full swing in a few short months, as in any election, there is a strong possibility that the contentious world of politics may spill into the work place.  If this happens, most of the time, it will likely be harmless banter among employees.  However, there is always the risk that things may get out of control and impede smooth operation.  Employers should be mindful of what they can and can’t do when politics enters the workplace.

When decoding whether an employee has a valid claim for being disciplined when engaging in political speech in the workplace, the first critical question is whether it is a public or a private employer.  If the employer is a public entity, courts will engage in a three part test to determine if the employee has a valid claim against the employer. If an employee’s speech is related to a matter of public concern, passes the court’s “balancing test”, and was not made pursuant to his or her official duties, the employee will have a claim against the public employer.

If an employer is a private employer, the analysis in the paragraph above goes out the window.  As a general rule, private employees have no federal constitutional protection when making political speech in the workplace.  Private employers can generally discipline an employee for making political speech on the job.

Like most rules, there are some exceptions.  All employers need to keep in mind that anti-discrimination laws still apply to speech based disciplinary actions, thus employers need to ensure

their political speech policies do not discriminate based on sex, national origin, religion or other protected areas.  Also, some states have laws and local ordinances that prohibit an employer from disciplining an employee for engaging in behavior, such as political speech, that is protected by that state’s constitution.  Such laws are few and far between, and most of these statutes do not apply to political speech that occurs in the workplace, but human resources departments should look at the statutes and case law in their particular state when developing and enforcing such policies .

While private employees have no federal constitutional protection and very little state constitutional protection, private employees do have one major avenue of protection when it comes to workplace speech: the

National Labor Relations Act (“NLRA).  The protections for employee speech provided by the NLRA apply to both union and non-union employees.  The National Labor Relations Board which reviews such cases says that employee speech is protected by the NLRA if it is (1) concerted, (2) about a work related object, and (3) protected.   Employee speech is concerted if it is “engaged in, with or on the authority of other employees and not solely by and on behalf of the employee himself.”  Note that this does not require official union activity or even talk of collective bargaining.  Employee speech is about a “work related object” if it is intended for mutual employee aid or related to wages, hours or other terms of employment.

Even if employee speech is concerted and about a work related object, it must also be “protected”.  Employee speech will not be “protected” if the employee’s actions are unlawful or overly disruptive.  Employers have to jump a relatively high hurdle to establish that an employee’s actions are not protected, however, and rudeness is not enough.  In most

cases, political speech involving elections will not be protected by the provisions of the NLRA but it is a good idea to keep it in mind.

Of course, employers should also consider issues such as employee morale and the feasibility of enforcement when crafting a policy on workplace political speech.  Employer policies should balance workplace efficiency with employee freedom.  For example, in most circumstances a policy could include a prohibition on political speech in areas within view or earshot of customers and limit the size and permissible locations of political buttons and posters.

In sum, most employers should familiarize themselves with the differing legal restrictions depending on whether they are public or private employers, and all should avoid restraining speech protected by the NLRA or local law.  Consulting with legal counsel is recommended before taking adverse employment actions based on political speech.

Supreme Court: Pharmaceutical Companies Are Not Required To Pay Sales Reps Overtime

In Christopher v. SmithKline Beecham Corp., the Supreme Court held that the Fair Labor Standards Act (“FLSA”) exempts pharmaceutical companies from having to pay overtime wages to sales reps.

At issue was whether or not pharmaceutical reps are deemed “outside salesmen”.  If not, the reps would be entitled to overtime pay when they work over 40 hours per week     While the case was being heard by the Ninth Circuit, the Department of

Labor (“DOL”) filed an amicus brief stating that a “sale”, for the purposes of the outside salesman exception, required a “consummated transaction”.  At the Supreme Court level, the DOL changed its definition to require that title to the property at issue change hands.  The Court declined to accept this definition noting that the pharmaceutical industry had long operated under the presumption that its reps were exempted as outside salesmen; a presumption never challenged by the DOL.  To change course now, the Court held, would be to subject the industry to an “unfair surprise”.

The Court then turned to the FLSA for guidance and concluded that defining “outside salesman” requires an examination of the specific industry and whether the actions of the sales reps bear the hallmarks of a traditional salesperson.  Noting that because pharmaceutical reps spend the vast majority of their time obtaining commitments by doctors to write prescriptions for a specific drug, and that the only people allowed to actually “sell” drugs to consumers are pharmacists,

the Court held that the reps function as outside salesmen thus exempting the pharmaceutical companies from having to pay overtime.

While this opinion is directed specifically at pharmaceutical companies, its reasoning has broad implications.  When determining whether to pay overtime, companies should be cognizant of common industry sales practices, DOL regulations, FLSA provisions, and what functions salespeople perform.  Given the high number of hours salespeople often work, taking the time to makes these determinations is well-worth the cost.

New Nebraska Employee Reference Protections

Nebraska recently signed into law LB959, a bill that lets employers share more information to prospective employers about current and former employees with less threat of legal liability.  In a nutshell, employers will be given a rebuttable presumption of good faith when they follow the law’s specific requirements.  Employers should learn the new law’s requirements, and very real limitations, before changing policies, procedures and forms.

To obtain the protections of the new law, employers must first obtain a written authorization from the employee to release the information, and that consent must be signed and dated, and in either a stand-alone document, or be a conspicuous part of the employment application

(in bold and larger typeface) which states:

“I, (applicant), hereby give consent to any and all prior employers of mine to provide information with regard to my employment with prior employers to (prospective employer).”

Those employers obtaining that that specific consent will be given the protection for a period of six months when providing certain information, including:

(i)             Date and duration of employment;

(ii)           Pay rate and wage history on the date of receipt of written consent;

(iii)          Job viagra for sale description and duties;

(iv)          The most recent written performance evaluation prepared prior to the date of the request and provided to the employee during the course of his or her employment;

(v)           Attendance information;

(vi)          Results of drug or alcohol tests administered within one year prior to the request;

(vii)         Threats of violence, harassing acts, or threatening behavior related to the workplace or directed at another employee;

(viii)        Whether the employee was voluntarily or involuntarily separated from employment and the reasons for the separation; and

(ix)           Whether the employee is eligible for rehire.

Employers should not be lulled into false confidence by this new law for several reasons.  The protections are quite limited since the authorization is valid for only six months.  Also, the presumption of good faith on the part of the employer does not apply if information disclosed turns out to be false and the employer either knew it was false, or acted with malice or reckless disregard for its truth.  Where particularly subjective information is shared, such as the quality of job performance, this means employers may have little actual protection from lawsuits.  Finally, the good faith presumption on the part of the employer can be overcome with a finding that the employer discriminated or retaliated because the employee “exercised or is believed to have exercised any federal or state statutory right or undertaken any action encouraged by the public policy of this state.”  In summary, significant risk remains, and employers should maintain their caution when sharing any information about current or former employees.

Those wishing to obtain the protections of the law should examine and alter current policies and procedures with advice of counsel.  Potentially conflicting legal requirements and company policies should be considered, for example, those pertaining to drug and alcohol tests.  The new Nebraska law makes no direct changes to those, and many company policies provide assurances of confidentiality.  Reference release forms and applications must also be reviewed, and will most likely require alteration to be in compliance.   And as before, an employer’s best practices include keeping tight controls on the release of such information, with only one person in a company designated (and properly trained) to do so.

Can an Employee be Disciplined for Engaging in Political Speech in the Workplace?

Election season will be in full swing in a few short months, as in any election, there is a strong possibility that the contentious world of politics may spill into the world of your business.  If this happens, most of the time, it will likely be harmless banter among employees.  However, there is always the risk that things may get out of control and impede its smooth operation.  Employers should be mindful of what they can and can’t do when politics enters the workplace.

When analyzing whether an employee has a valid claim against an employer for being disciplined when engaging in political speech in the workplace, the critical question an employer needs to ask is whether it is a public or a private employer.  If the employer is a public entity, courts will engage in a three part test to determine if the employee has a valid claim against the employer by first determining whether the speech relates to a matter of public concern, then balancing a variety of factors relating to the effect of the speech on the public and on the operation of the public entity and finally by determining whether the speech was made pursuant to the employee’s official duties.  If an employee’s speech

is related to a matter of public concern, passes the balancing test, and was not made pursuant to his or her official duties, the employee will have a claim against the public employer.

If an employer is a private employer, the analysis in the paragraph above goes out the door.  As a general rule, private employees have no Federal Constitutional protection when making political speech in the workplace.  Private employers can generally discipline an employee for making political speech on the job.  Thus, private employees should be wary of bringing politics into the workplace.  Like most rules, there are some exceptions.

Employers need to keep in mind that anti-discrimination laws still apply to speech based disciplinary actions, thus employers need to ensure their political speech policies do not discriminate based on sex, national origin, religion or other protected areas.  Some states have statutes which prohibit an employer from disciplining an employee for engaging in behavior, such as political speech, that is protected by that state’s constitution.  Statutes such as these are few and far between and most of these statutes do not apply to political speech that occurs in the workplace.  Accordingly, while the general rule described above most likely applies, human resources departments and employees alike should look at the statutes and case law in their particular state when developing and enforcing policies or when thinking about engaging in political activities in the workplace.

While private employees have no Federal Constitutional protection and very little state constitutional protection, private employees do have one major avenue of protection when it comes to workplace speech: the National Labor Relations Act (“NLRA).  The protections for employee speech provided by the NLRA apply to both union and non-union employees.  Employee speech is protected by the NLRA if it is (1) concerted, (2) about a work related object, and (3) protected.   Employee speech is concerted if it is “engaged in, with or on the authority of other employees and not solely by and on behalf of the employee himself.”  Meyers Industries, 281 NLRB 882 (1986).  Note that this does not require official union activity or even talk of collective bargaining.  Employee speech is about a “work related object” if it is intended for mutual employee aid or related to wages, hours or other terms of employment.  However, even if employee speech is concerted and about a work related object, it must also be “protected”.  Employee speech will not be “protected” if the employee’s actions are unlawful or overly disruptive.  Employers have to jump a relatively high hurdle to establish that an employee’s actions are not protected, rudeness is not enough.  In most cases, political speech involving elections will not be protected by the provisions of the NLRA but it is a good idea to keep it in mind.

Of course, in addition to knowing what limits the law imposes on their ability to curtail employee political speech, employers should consider issues such as employee morale and the feasibility of enforcement when crafting a policy on workplace political speech.  Employer policies should attempt to balance workplace efficiency with employee freedom.  For example, a policy could include a prohibition on political speech in areas within view or earshot of customers and limit the size and permissible locations of political buttons and posters.

In sum, most private employees should be careful about what they say and do in the workplace when it comes to political speech because, in most circumstances, they can be disciplined for political speech unless it falls within the purview of the NLRA or other generally applicable federal or state law.

Supreme Court sides with church on employee firing.

The Supreme Court unanimously ruled that a school teacher who was trained in theology, directed prayer services, and taught religion classes in addition to secular classes could be terminated from employment after missing work due to a disability because of the “ministerial exception” to the Americans with Disabilities Act.

Perich was employed as a “called” teacher, as opposed to a “lay” teacher, at Hosana-Tabor Evangelical Lutheran Church and School

(“School”).  Perich mostly taught secular courses, however, she taught a religion class and led students in other religious activities. Perich developed narcolepsy and took disability leave.  She attempted to return to work in February 2005 but was told that the school filled her position.  Perich filed a charge with the EEOC claiming that her employment had been terminated in violation of the Americans with Disabilities Act (“ADA”).  The EEOC brought suit against the School alleging that Perich had been fired in retaliation for threatening to file an ADA suit.

The Supreme Court unanimously held that there is a “ministerial exception” to the ADA because requiring a church to accept an unwanted minister interferes with the internal governance of the church thus infringing on the Free Exercise Clause of the Constitution.  The Court also held that Perich qualified as a “minister” despite the fact that the majority of her time was spent teaching secular courses.

The Supreme Court’s opinion can be found at http://www.supremecourt.gov/opinions/11pdf/10-553.pdf

Another Delay – NLRB Poster on Workplace Rights Again Set Back

The National Labor Relations Board (“NLRB”) issued a Final Rule requiring most private-sector employers to notify

employees of their rights to unionize.   (See first blog on the issue by clicking here).  The notice rule was originally scheduled require posting the rights in the workplace starting November 14, 2011, and then that date was postponed until January 31, 2012.  Now, at the request of a federal court in Washington, D.C., the NLRB has agreed to defer the posting requirement for three months until April 30, 2012.

Employers should mark their calendar, and stay attentive to the continuing legal challenges.

I was fired from my job! Do I have a case?

Whether you believe you were terminated from your employment for

a discriminatory reason such as race, color, national origin, religion, sex (including pregnancy), disability, marital status, age or retaliation (or currently working with the discrimination), one of the most important questions you may have is, “Do I have a case?”  Before you contact an attorney you should ask yourself the following:

  • Background

What is your age, educational background, and employment history? Do you have a criminal record?

  • Basic info about your (current or former) employer

What type of business is it? Number of employees? Has the employer been sued previously?

  • Hiring process

When were you hired? For what position? Who made the hiring decision? Did s/he make any promises or representations? Did you sign anything?

  • Employment history with this employer

Employment history with regard to: raises, promotions, bonuses, performance evaluations, awards, transfers,  suspensions, demotions and disciplinary action?

  • Events that led you to this point

If you were fired (or demoted or suffered some other adverse employment action), 1) why you think you were fired; and 2) the reason your employer gave or will give for firing you.  If your case involves harassment, we will discuss the nature of the harassment (e.g., was it unwelcome; was it severe and pervasive) & your reaction to the harassment (e.g., did you complain to your employer?).

  • Corroborating evidence

Were there any witnesses to the employer’s unlawful conduct? Do you have any documents to support your claims?

  • Post-termination events

Have you initiated any other claims or proceedings related to your employment (e.g., unemployment, disability, workers’ compensation, or other governmental agency proceedings, or bankruptcy)?

  • Potentially negative facts

Are you aware of any facts that might negatively affect litigation against the employer? These may be facts directly related to the workplace incidents or entirely unrelated (e.g., have you ever been arrested or fired from another job? Have you ever been sued or sued someone?). If you have a business and/or personal website; if you write a blog; if you use any form of social media (e.g., Twitter, Facebook), you will have to volunteer that information.

  • Mitigation of damages

The law requires you to mitigate your damages by diligently seeking substantially similar employment.

  • The end-game and the litigation process

What do you hope to gain from pursuing legal action against your (former) employer: a private apology; a public apology; a quick settlement; a jury verdict? What are your concerns?  Settlement and litigation processes, including the time involved, the potential cost (monetary and emotional), and potential negative outcomes.

Customer Lists Are "Trade Secrets"-With Caveats

Nebraska Revised Statutes sections 87-501 through 87-507, known as the “Trade Secrets Act” (“Act”), contains several provisions applying to employees and employers alike when

it comes to “customer lists.”

When an employee is considering leaving an employer, an employer’s customer list may be an appealing piece of information to an employee, especially if the employee is considering competing with his or her former employer.

Employees should avoid this temptation.  In Home Pride Foods, Inc. v Johnson, 262 Neb. 701 (2001), the Nebraska Supreme Court held that customer lists can be included in the definition of “trade secrets” under the Act.  A violation of the Act could lead to an injunction and damages for lost profits against a former employee.

However, not all customer lists are considered to be trade secrets under the Act.  To be considered to be a trade secret, a customer list usually must contain more information than the “mere identities and locations of customers that anyone could easily identify as possible customers.” Id. at 709.  Employers should also take reasonable steps to protect their customer lists in order to ensure their secrecy.

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Jeanelle Lust offered expert guidance and provided clear direction as to how to handle my legal issue. The legal matter was handled professionally and to my satisfaction. She has definitely brought the term "legal counselor" back into the law arena.

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