Tag: unions

May 2, 2018

Drug Testing New York Employees

Many employers test their employees for drug use. Some test only during the hiring process. Others require drug testing for existing employees on either a periodic or occasional basis. This post doesn’t weigh in on whether your organization should drug test employees. But it provides an overview of some of the legal issues involved.

Employee Rights Under New York Law

New York’s Labor Law protects employees’ legal use of “consumable products” before and after work, as long as the employee is off the employer’s premises and is not using their employer’s equipment or other property.

This means that, with a few possible exceptions, New York employees have the right to smoke cigarettes and drink alcohol outside of work. Employers usually cannot discipline or decline to hire employees for engaging in these activities.

However, the law does not prohibit employers from drug testing or disciplining employees who use illegal drugs, even if they only do so while off duty.

Medical Marijuana

New York’s legalization of medical marijuana adds one further caveat for employers.

The Compassionate Care Act permits New York residents (and individuals receiving treatment in the state) with a qualifying “serious condition” to obtain marijuana from licensed dispensaries for medicinal purposes. As of April 24, 2018, there were 52,435 certified medical marijuana patients in New York. That’s only about one-quarter of one percent of the total population of New York State.

Those certified patients do receive some job protections. However, the scope of those protections remains somewhat murky. Among other factors, the law does not require employers to violate federal law or federal contracts. Since marijuana remains an illegal drug under federal law even for New York certified patients, there may be situations where employers could discipline employees for testing positive for marijuana use.

Moreover, New York law does not give anyone, even if certified as a medical marijuana patient, the right to smoke marijuana, use it in a public place, or be “impaired” at work. Unfortunately, drug testing typically cannot measure impairment per se. Instead, it measures the presence of a drug in one’s body. Thus, a drug test alone may not conclusively establish that a certified patient has misused marijuana.

ADA Considerations

The Americans with Disabilities Act restricts employers’ medical inquiries and examinations of employees. Drug and alcohol testing are medical examinations, which usually must be job-related and consistent with business necessity. However, the ADA does not cover testing for illegal drugs.

Alcohol is not illegal, so employers must have a legitimate business reason for alcohol testing. There must be some basis for conducting alcohol testing and it cannot be done on an arbitrary basis.

Employers may require alcohol testing as a condition of return to work from an alcohol rehabilitation program if the employer believes the employee will pose a direct threat if not tested.

To avoid potential violations of the ADA’s confidentiality requirements, employers should maintain drug test results in employees’ separate medical files. They should only be available to managers with a need to know the results for valid administrative reasons.

Drug Testing Procedures

Under the federal Omnibus Transportation Employees Testing Act of 1991, some employees within the transportation industry are subject to mandatory drug and alcohol testing rules. The rules apply to employees in “safety-sensitive” positions, such as pilots, airline mechanics, truck drivers, and bus drivers.

Although the federal transportation drug testing rules do not technically apply to most employees, they provide a detailed set of testing protocols and procedures often voluntarily borrowed by other industries.

The transportation industry rules identify these drug testing scenarios:

Pre-employment
Random
Reasonable Suspicion
Periodic
Post-Accident

They also establish rigorous laboratory parameters to ensure accurate test results. Most employers who require employee drug testing us specimen collection/analysis professionals who comply with federal Department of Transportation standards.

Drug Testing Unionized Employees

Drug testing employees who belong to a bargaining unit represented by a union is a mandatory subject of bargaining. So, employers with union-represented employees must negotiate with the union over any employee drug testing programs.

However, private sector employers generally do not have to negotiate with a union over pre-employment drug testing. Because applicants are not yet employees, the National Labor Relations Board has found that employers have no obligation to bargain over pre-employment requirements.

Drug Testing Public Employees

Unions represent most public sector (i.e., government) employees in New York. And, like private companies, most governmental employers in New York must negotiate with their employees’ unions over drug testing.

Beyond any bargaining obligations, constitutional restrictions may apply to public employee drug testing. Because of the Fourth Amendment’s protection against unreasonable searches and seizures, public employers must have “individualized suspicion” to drug test an employee. Where there is “individualized suspicion,” the employer may drug test the employee when a “special need” outweighs the employee’s privacy interest.

The Drug-Free Workplace Act

Employers with federal grants and some federal contractors are subject to the federal Drug-Free Workplace Act. Covered employers must adopt a drug-free workplace policy and establish a drug-free awareness program. The law does not require any employers to drug test any employees.

For more, read What Does the Drug-Free Workplace Act Require?

Elements of an Effective Drug Testing Program

Employers who choose to test for drug or alcohol use regularly should implement a written policy. The policy should identify:

Prohibited Conduct
Occasions for Drug Testing of Employees/Applicants
Test Collection and Analysis Procedures
Consequences of Failing a Test
Provisions for Rehabilitation and Recovery

In addition to drug and alcohol testing, employers should consider making available an Employee Assistance Program to address substance use, among other employee issues. Especially if reasonable suspicion testing will be used, employers should also provide training to supervisors and employees regarding signs of substance abuse.

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April 25, 2018

10 Telecommuting Topics for Employers

Does your company allow employees to work from home? Telecommuting can be a great fit for many workers (and their employers). But organizations should consider various implications before going in this direction.

Here, I’ll share 10 potential legal issues related to telecommuting. This isn’t meant to deter any business from using this model. It’s just designed to help you make an informed decision and take appropriate precautions.

1. Timekeeping

Most employers are required under the FLSA or state laws to keep accurate time records of their employees. This is especially true for non-exempt employees who may be eligible for overtime pay when they work over 40 hours per week (or another applicable threshold). Employers must be able to trust their employees working at home to report their time accurately and provide a mechanism for doing so.

2. Meal Periods

Some state laws, such as New York’s, impose mandatory meal period breaks during the workday. These may apply to employees working from home as well as those on the employer’s premises. If so, employers must ensure that their telecommuting employees take the required time off during the day.

3. Overtime

Many companies restrict the amount of overtime their employees work–usually as a cost-containment measure. This may be more difficult to control for telecommuting employees who are out of sight. Nonetheless, if non-exempt employees working from home exceed the applicable threshold, the employer must pay the overtime compensation.

4. Time Off

It can be a challenge to monitor and handle time off for on-site workers. This can sometimes become even more difficult when the employees don’t physically report to work. First, supervisors may not know whether an employee is actually working, so some employees may not use leave time even though they are not doing work when they normally should be. And the opposite can also raise issues. A telecommuter who takes a day off may feel compelled to perform some work while they’re supposed to be on vacation or sick leave. This may raise complications in tracking benefit time and hours worked.

5. Confidentiality

Telecommuting employees often have remote access to company information that on-site workers may not need. Or, at least, they usually have less direct supervision in their use of company data and property. Employers should consider measures to prevent employees from intentionally or accidentally taking or transferring their proprietary information to unauthorized third parties.

6. Security

Even if your employees don’t misuse company information, other nefarious third-parties may seek to do so. Remote data transfer between telecommuting employees and the company’s electronic systems may not be as secure as on-site access. This could be especially true when employees may access company information from outside their homes, such as through public Wi-Fi connections.

7. Discrimination

As with most workplace issues, consistency is important in permitting employees to telecommute. Inconsistent treatment, even if inadvertent, can give the appearance of unfair treatment. This may even give rise to discrimination claims. For example, although well-intended, a company that only allows women with young children to work from home, might be discriminating against male employees. Likewise, an organization that discourages older workers from working from home, but permits younger employees to do so (on the theory that they’re more “tech savvy”) could be engaging in age discrimination.

8. Disability Accommodations

The Americans with Disabilities Act and similar state laws require employers to make reasonable accommodations to qualified employees with disabilities. This could extend to the home workplace. Thus, under some circumstances, employers may need to modify employees’ homes to enable them to work there. At present, however, most employers would probably not be required to allow employees to work from home to accommodate a disability if they do not normally allow telecommuting. This could mean that allowing telecommuting in the first place opens employers to greater disability accommodation responsibilities.

9. Safety

Under OSHA, employers must keep their employees’ workplace reasonably safe. In addition, companies may become responsible, through their workers’ compensation insurance, for telecommuting employees’ injuries occurring in their own homes. As a result, it may be prudent (though not always practical or desirable) for an employer to inspect employees’ home workspaces.

10. Unions

Employees who work from home can still be in represented bargaining units. And unions vary in their approach to whether this is a good idea. Some unions would object to an employer allowing some employees to telecommute. Others may push for the option.

Telecommuting on the Rise

Like unions, employers have different ideas about how effective telecommuting can be. Some embrace it completely, and others reject it altogether. Others are in-between. But, whatever your take, telecommuting is increasingly popular.

A 2017 State of Telecommuting in the U.S. Employee Workforce Report indicates that 3.9 million U.S. employees work from home for at least half of their work time. This is 2.9% of the overall U.S workforce and a 115% increase since 2005.

In this digital era, many employees place tremendous value in having the flexibility to work remotely. Companies that want to attract those workers may need to modify their past approach to telecommuting. But, there remain many industries, such as manufacturing, hospitality, and construction, where much of the workforce must be physically present. Remember that the above issues also apply to traditional work arrangements as well!

April 19, 2018

New York Protects Public Sector Unions

Through the State Budget bill signed by Governor Andrew Cuomo on April 12, 2018, New York has new legal protections for unions that represent government employees. These measures seek to protect public sector unions from the potential implications of the Supreme Court’s upcoming decision in the case of Janus v. AFSCME. Many expect that decision to allow public employees to refuse to financially support the unions that represent them in collective bargaining.

What’s at Stake in Janus?

I have recently described what Janus may mean for New York’s public sector unions here.

The U.S. Supreme Court heard arguments in the case on February 27, 2018. Its decision will likely come out this spring.

Existing Supreme Court precedent holds that public employees cannot be required to pay for unions’ political activities. However, they can be required to contribute to the union’s actual costs of contract negotiation and administration.

Illinois state employee Mark Janus is asking the Court to change that standard. He wants the Court to rule that, under the First Amendment, public employees cannot be required to fund unions against their will. This outcome could threaten public sector unions’ ability to raise sufficient funds to perform their day-to-day operations.

New York Legislative Measures

Without waiting for the decision in Janus, the New York State Legislature has enacted protections seeking to give public sector unions greater leverage over employees who might consider opting out of union membership.

Modification of Dues Deduction Requirements

Before these amendments, New York’s Civil Service Law required public employers to deduct union dues from employees’ paychecks “upon presentation of dues deduction authorization cards signed by individual employees.”

The Legislature has added considerable additional language to that requirement addressing time limitations, forms and means of authorizations, and employee revocation.

The law now requires employers to begin union dues deductions within 30 days of receiving proof of a signed authorization. The employer must then continue to make the deduction until either the employee revokes membership in the union “in writing in accordance with the terms of the signed authorization” or ends employment. Previously, the law permitted an employee to end the dues deductions by submitting written notice of withdrawal of the dues authorization.

Notably, the law now also provides that if an employee leaves and returns to employment within a year, then their prior authorization will remain in effect.

Notification of New Employees

A new provision of the Civil Service Law requires public employers to notify the applicable union within 30 days of hiring, rehiring, promoting, or transferring an employee into a bargaining unit.

The notice to the union must include the employee’s:

name;
address;
job title;
employing agency;
department or other operating unit; and
work location.

This information will enable the union to contact the employee for purposes of encouraging union membership and signing of a dues deduction authorization card.

Meeting with New Employees

In case providing the employee’s information to the union isn’t enough, the law now actually compels public employers to make their employees available, on work time, to meet with union representatives. Employers must allow this within 30 days of providing the information above.

The union representing the employee’s bargaining unit may meet with the employee “for a reasonable amount of time … without charge to leave credits.” The union must arrange the meeting time with the employer.

Duty of Fair Representation

Before this legislation, public sector unions owed a general “duty of fair representation” to all employees in the bargaining unit they represent, including employees who chose not to join the union. Now the law allows a union to “limit[] its services to and representation of non-members.” This limits the duty of fair representation to “the negotiation or enforcement of the terms of an agreement with the public employer.”

In more detail, the law explains this to mean that public sector unions do not have to represent non-members:

during questioning by the employer;
in statutory or administrative proceedings or to enforce statutory or regulatory rights; or
in any stage of a grievance, arbitration, or other contractual process concerning the evaluation or discipline of a public employee where the non-member is permitted to proceed without the employee organization and be represented by his or her own advocate.

The law also expressly permits public sector unions to limit legal, economic, or job-related services or benefits beyond those provided in the collective bargaining agreement only to union members.

Impact on Public Sector Unions

It is hard to guess how these preemptive measures will hold up following the Supreme Court’s ruling in Janus. In addition to the above substantive amendments, the Legislature included two sections in the law recognizing the potential that some of these requirements could be found unconstitutional. If so, the law provides, the remainder of the legal requirements would remain in effect.

But the intent of the legislation is clear. It seeks to protect New York’s public sector unions against federal limitations. To that end, Governor Cuomo announced, upon signing the legislation:

“Too often, and at the hands of this federal administration, we are seeing the labor movement going backwards. In New York it is a different story, and our efforts to protect working men and women are moving labor forward, making the workplace fairer and more just than ever before. This action sends a clear message to the rest of the nation: we will not let this federal administration silence New York’s working class, we will support every voice in every community and in every industry, and we will do everything in our power to protect the right to achieve the American Dream.”

Impact on Public Employers

Without even knowing what further impact the Janus decision will have, it is too early to anticipate the ultimate impact on employers. In many cases, these changes probably will not have an immediate effect on existing bargaining units. Many employees will likely continue to support their unions, who will continue to represent them and others in their bargaining unit.

Some employers would probably be happy if unions faded out of their workplaces. And this may happen over time. But other employers would regret seeing one union leave to be replaced by an unfamiliar one.

If nothing else, the release from the duty of fair representation, if legally upheld, may benefit employers as well as unions. It could result in fewer grievances and less litigation where unions decline to fight on behalf of non-member employees. On the other hand, these employees may still be able to arbitrate or litigate on their own, with or without legal representation.