By: Ogletree Deakins

The National Labor Relations Board (NLRB) has ordered a non-unionized hospital to rescind Code of Conduct provisions prohibiting “Verbal comments or physical gestures directed at others that exceed the bounds of fair criticism” and “Behavior . . . that is counter to promoting teamwork,” finding those prohibitions to be unfair labor practices. William Beaumont Hospital and Jeri Antilla, NLRB Case No. 07-CA-093885, January 30, 2014.

Since at least 2009, William Beaumont Hospital in Royal Oak, Michigan, has maintained a Code of Conduct for its Surgical Services and Perianesthesia that lists examples of prohibited “improper conduct or inappropriate behavior” that would lead to “remedial or corrective action.” In addition to “Willful and intentional threats, intimidation, harassment, humiliation . . . [and] profane and abusive language,” that list originally included a prohibition on “Verbal comments or physical gestures directed at others that exceed the bounds of fair criticism.” It also prohibited “Behavior that is disruptive to maintaining a safe and healing environment or that is counter to promoting teamwork.”

In November 2012, two employees of the hospital – Jeri Antilla, a Registered nurse, and DeAnna Brandt, a certified surgical technician, were fired for exhibiting “intimidating and bullying behavior” after an investigation elicited statements from several staff nurses at the hospital that the two were sarcastic and condescending towards the newer nurses.

Antilla and Brandt ultimately filed Unfair Labor Practices charges against the hospital. The discipline or discharge of an employee violates Section 8(a)(1) of the National Labor Relations Act (NLRA) if the discipline or discharge was based upon protected concerted activity.

 At the trial on the original charges brought by Antilla and Brandt, the NLRB’s General Counsel verbally amended the complaint to allege that the hospital’s Code of Conduct was overly broad and could discourage Section 7 activities under the NLRA (including engaging in concerted activities for mutual protection or aid). This amendment was especially interesting, because neither Antilla nor Brandt had been disciplined for specific violation of the Code of Conduct.

The Administrative Law Judge (ALJ) determined, after analyzing the Code of Conduct language, that while much of the Code addressed specific business concerns, two of the work rules – those prohibiting “Verbal comments or physical gestures directed at others that exceed the bounds of fair criticism” and “Behavior . . . that is counter to promoting teamwork” – were overbroad and ambiguous, and violated Section 8(a)(1) of the NLRA because they could “reasonably be interpreted as prohibiting lawful discussions or complaints that are protected by Section 7 of the Act.” The ALJ also found the hospital to have violated Section 8 by issuing a directive to an employee not to discuss with her coworkers an investigation into a sentinel hospital event involving a patient.

 While the Administrative Law Judge found that Antilla and Brandt engaged in discussions and activities that could be viewed as “protected” under the NLRA, the ALJ also found that the two women “would have been terminated absent their protected activity” since an investigation found that they also engaged in activities viewed by others as bullying, mocking, and intimidating behavior, which is not protected under the NLRA. The ALJ recommended dismissal of the charges related to both Antilla and Brandt.

The ALJ’s decision sends a mixed message to employers. While the NLRB has been paying increased attention to policy and handbook provisions related to personal interaction among employees, that attention has not consistently led to the conclusion that disciplinary action for bullying or intimidating behavior is precluded by the NLRA. One way to avoid the rock-and-a-hard-place situation is to review handbooks and other employee policies to assure that existing language is not likely to prohibit protected conversations or other “concerted activity” among employees regarding working conditions.
 

A car dealership’s prohibition on “pins, insignias, or other message clothing which are not provided to them by the company” was deemed overly restrictive and a violation of the National Labor Relations Act (NLRA). Boch Imports, Inc., NLRB, Case No. 1-CA-83551, January 13, 2014.

Beginning in December 2011, Boch Imports, Inc., doing business as Boch Honda, maintained an Employee Handbook containing several rules and policies that became the subject of an unfair labor practice charge filed on June 12, 2012 by a local of the International Association of Machinists & Aerospace Workers (the Union). The Union alleged that the provisions of the Handbook were overly restrictive and therefore in violation ofSection 8(a)(1) of the NLRA, which prohibits employers from interfering with employees as they engage in concerted activity.

The Handbook sections initially objected to by the Union included provisions regulating Confidential and Proprietary Information, Discourtesy, Inquiries Concerning Employees, Dress Code, Solicitation/Distribution, and Social Media.

After an initial consultation with the a regional office of the National Labor Relations Board (NLRB), Boch revised all of the subject provisions in 2013, other than the Dress Code provision, which prohibited employees who had contact with the public from wearing pins, insignias, or other “message clothing.”

Under NLRB precedent, a rule that curtails an employee’s right to wear union insignia at work is presumptively invalid. That presumption can be overcome only by a showing that special circumstances exist that would make such a rule necessary to “maintain production or discipline, or to ensure safety.”

Boch defended its Dress code policy by asserting that pins are a safety hazard that could injure employees and damages vehicles. It also argued that as “Number 1 on the Planet,” Boch believed that the dress code was necessary to protect its image. The NLRB agreed with the rationale regarding pins, but otherwise disagreed and found that a “message clothing” provision was overly broad and in violation of the NLRA.

As a remedy for the infraction, Boch was ordered to rescind the Dress Code policy other than the provision regarding the wearing of pins, and to disseminate a Corrected Employee Handbook. The company also was required to post a Notice for 60 consecutive days in “conspicuous places” and to assure that the Notice as not defaced or damaged. The Notice included the following language:

“FEDERAL LAW GIVES YOU THE RIGHT TO: Form, join, or assist a union; Choose representatives to bargain with us on your behalf; Act together with other employees for your benefit and protection; [and] Choose not to engage in any of these protected activities.”

This language is of particular interest, since on January 6, 2014, the NLRB decided not to seek Supreme Court review of two U.S. Court of Appeals decisions invalidating the NLRB’s Notice Posting Rule, which would have required most private sector employers to post a Notice of Employee Rights, including that very language, in most workplaces in the country.

Even though the NLRB’s rule requiring that posting has been struck down, the NLRB can use its decisions related to employer actions to require that language to be posted on a case-by-case basis when employers have been found to violate the NLRA in any way, regardless of how limited or narrow the substantive violation is. Therefore, employers should be especially vigilant in complying with the NLRA, in order to avoid the double penalty of a specific notice to employees regarding the subject violation, in addition to a general Notice of Employee Rights regarding the formation of unions.
 

According to the Department of Labor’s Occupational Safety and Health Administration (OSHA), hospital workers regularly face serious workplace hazards, including exposure to chemicals, hazardous drugs, and needle-sticks. Those workers often suffer musculoskeletal injuries that come from manually lifting and repositioning patients.

OSHA statistics indicate that U.S. hospitals recorded nearly 250,000 work-related injuries and illnesses in 2012, almost 58,000 of which resulted in absences, causing interruptions in patient care. Such injuries and work-related illnesses also contribute to overall higher costs for care in hospitals.

On January 15, 2014, to lower the cost associated with workplace injuries for hospital employees, OSHA issued a press release, announcing a new online resource for hospital and healthcare employers. The new website is meant to help prevent workplace injuries, and to enhance safe patient handling programs and procedures.

According to OSHA, the centerpiece of the website comprises “real life lessons” from high performing hospitals from around the country who have implemented “best practices” to reduce injuries and improve patient safety. The website contains specific and usable information to help prevent the most common type of injuries suffered by hospital workers.

The site includes accessible resources and products that include a self-assessment tool, a “busting the myths” page on patient handling procedures, and a “safe patient handling check list” that could easily be implemented in any hospital environment. OSHA’s new guidance products is meant to help hospitals develop and implement safe patient handling assessments, policies, procedures, programs, training, and patient education.

While the new website was developed for hospitals, the information applies generally to healthcare employers whose employees have hands-on responsibilities for patients, and therefore are exposed to the risks outlined and dealt with in the website materials. The fact that OSHA has issued recent guidance materials, and now this website on caregiver issues underscores the fact that healthcare worker safety continues to be a focus of OSHA and of the U.S. Department of Labor.
 

Can transferring an employee into a position for which he had applied nine months earlier be viewed as an “adverse employment action” sufficient to support a claim of discrimination? (HINT: Don’t bet your paycheck on this one.)

Robert Deleon, a 53 year old Hispanic male, was employed by the Kalamazoo County Road Commission for twenty-eight years. Deleon successfully held the position of Area Superintendent – in which he supervised road maintenance activities, road crews, and repairs – for over ten years. In 2008, Deleon applied for the position of Equipment and Facilities Superintendent, viewing that job as one with potential for career advancement.

Although the Superintendent position was primarily an office job, the job description included a statement that the position included “exposure to loud noises and diesel fumes.” Based on that fact, Deleon had planned to ask for a salary increase, had he been a finalist for the position. Deleon did not get that job, based largely on the fact that his computer skills were insufficient for the work.

The individual hired for the Superintendent position left shortly after starting the job; the position then was offered to an external candidate, who declined it. In 2009, nine months after his original unsuccessful application, Deleon was directed into the position, without the choice to decline and without the requested raise. According to the Commission, the move was part of a larger reorganization.

Deleon moved into the position which, according to another employee, was a “stinky environment,” akin to “sticking your head in an exhaust pipe.” The job also was described as much like sitting “in traffic behind a city bus . . . diesel fumes all the time.” After a short time on the job, Deleon developed bronchitis and other respiratory ailments.

In the Superintendent position, Deleon had several disagreements with his own supervisor who, Deleon believed, was setting him up to fail. After one fractious meeting, Deleon was hospitalized for five days for stress; Deleon followed that absence with eight months of leave, ostensibly under the FMLA. Deleon’s psychiatrist ultimately cleared Deleon to return to work in August 2011, but the Commission already had terminated him, stating that Deleon had exhausted all available leave.

Deleon sued the Commission for age, race, and national origin discrimination under various federal statutes. Under all of the relevant laws, Deleon had to show, as part of his prima facie case, that he had suffered an “adverse employment action.” An adverse employment action typically is defined as a “materially adverse change in the terms and conditions of a plaintiff’s employment.”

The lower court granted summary judgment in favor of the Commission, finding that Deleon’s lateral transfer was not an adverse action. Upon review, the 6th U.S. Circuit Court of Appeals disagreed and remanded the case for trial, finding that a factual question exists as to whether transferring Deleon to a job for which he initially applied would preclude him from arguing that the transfer was an adverse action. Deleon v. Kalamazoo County Road Commission, 6th Cir., No. 12-2377, January 14, 2014.

The Sixth Circuit held that a lateral transfer may constitute an adverse action, even in the absence of a demotion or other negative consequence, “so long as the particular circumstances present give rise to some level of objective intolerability.” Having so stated, the Court then pointed out what it believed to be sufficient evidence upon which a jury could find that Deleon’s work environment was objectively intolerable, including the regular exposure to diesel fumes.

The Court did not make a final determination that Deleon’s transfer to the position for which he initially applied was an adverse action – it simply said that a jury ultimately would have to make that decision. The Sixth Circuit, however, did categorically refuse to state that a plaintiff’s initial request to obtain a position precludes that individual from subsequently alleging that he suffered a materially adverse employment action when ultimately placed into that same position. This is an issue worth watching for new – and possibly conflicting – decisions from other circuits.
 

In an unpublished opinion, the U.S. District Court of Appeals for the 6th Circuit reversed a lower court’s dismissal of a pregnancy discrimination claim, finding that an employer’s “no accommodation for non-work-related injuries” raised an issue of pregnancy discrimination for a jury. Latowski v. Northwoods Nursing Center, 6th Cir., No. 12-2408, December 23, 2013.

Jennifer Latowski was employed as a certified nursing assist (“CNA”) with North Woods Nursing Center in Farwell, Michigan, beginning in July 2007. In that role, she assisted nursing home residents in their daily activities, including showering, dressing, eating, and ambulating. On four occasions during her employment at North Woods, Latowski passed “essential functions” tests, and was viewed as a competent employee.

On September 26, 2008, North Woods became aware that Latowski was pregnant, and asked Latowski to obtain a doctor’s note saying that she had no employment restrictions. The request was made pursuant to a North Woods policy that the company only would accommodate restrictions resulting from work-related incidents. Latowski’s doctor provided a note to North Woods, restricting Latowski from lifting over 50 pounds. When Latowski subsequently attempted to return to work, she was informed that she had “resigned,” and was escorted from the facility. Comments allegedly made by North Woods management regarding Latowski’s pregnancy and restrictions include statements regarding the fact that Latowski’s “belly would be in the way” of her work, and that North Woods didn’t want to be liable for any harm that may come to Latowski’s unborn child if Latowski continued to work.

Latowski filed an EEOC charge and, ultimately, a federal court lawsuit, alleging violation of the Pregnancy Discrimination Act (PDA), the Americans with Disabilities Act (ADA), and the Family and Medical Leave Act (FMLA). A federal district court granted summary judgment to North Woods on all claims, reasoning that North Wood’s policy was “pregnancy blind” and that there was no evidence that North Woods “harbored discriminatory animus towards [Latowski’s] pregnancy.”

On appeal to the Sixth Circuit, Latowski conceded that North Woods accommodation policy was facially nondiscriminatory, but argued that North Woods’ imposition of the policy to Latowski’s condition – in spite of the fact that her pregnancy did not negatively affect her ability to pass the essential functions test required for her to do her job – was discriminatory. The Sixth Circuit agreed, reversing the dismissal of the PDA claim. (The Court did, however, uphold the lower court’s dismissal of the ADA and FMLA claims for other reasons.)

Along with specific mention of the comments made by management which, according to the Court, raised a genuine issue of fact regarding whether those comments played a role in the decision to terminate Latowski’s employment, the opinion in this case includes a footnote that is worthy of attention. In that note, the Court differentiates between the analysis of typical Title VII claims and the analysis of a claim under the PDA, pointing out that “While Title VII generally requires that a plaintiff demonstrate that the employee who received more favorable treatment be similarly situated in all respects, the PDA requires only that the employee be similar in his or her ability or inability to work.”

Based on that analysis, Latowski was able to show that North Woods treated non-pregnant CNAs with similar lifting restrictions (and therefore, similar ability/inability to work as Latowski’s) more favorably by allowing them to work light duty jobs, while precluding her from doing so.

This analysis raises a critical point for employers who have light duty policies that are restricted to employees with work-related injuries. It does not change the fact that an employer can have a light duty policy that restricts individuals with non-work-related injuries from light duty accommodation. However, what it does do, in essence, is instruct employers that pregnancy cannot be viewed as a non-work-related injury if, in fact, the pregnant employee is similarly restricted from working as is a non-pregnant employee with a work-related injury.
 

Bonuses paid or gifts given to non-exempt employees (those entitled to overtime wages for working hours in excess of 40 per week) at the end of the year or during the holidays can, in certain circumstances, trigger the overtime calculation provisions of the Fair Labor Standards Act (FLSA). The important factor is whether the bonus is discretionary or non-discretionary.

A non-discretionary bonus is one that is agreed to or promised in advance – including a bonus paid for production levels, attendance, or as guaranteed in a collective bargaining agreement – and must be included in in an employee’s regular rate used for determining overtime pay. Non-discretionary bonuses also can include holiday bonuses paid at the same time each year and relied upon by the employees. The determination of whether or not a bonus falls within the non-discretionary designation is fact specific and should be discussed with the company’s human resource or legal counsel before deciding if and when to pay the bonus.

If a holiday or year-end bonus is found to be non-discretionary, the bonus amount must be apportioned back into the workweeks in which it was earned so that the employer can re-calculate any additional overtime pay due to an employee for the period covered by the bonus. FLSA regulations require that overtime must be paid at the time it is earned. However, in the case of a bonus that is deferred for longer than a week, the regulations also provide that employers may disregard the bonus in computing the regular hourly rate for a particular week until the bonus amount for the workweek can be ascertained. Once the bonus amount is ascertained, that amount must be apportioned back over the workweeks of the period during which it may be said to have been earned and paid out (for example, a year-end bonus that may encompass the entire work year).

On the other hand, a discretionary bonus is generally a payment that an employee does not have reason to expect; such bonus is made at the sole discretion of the employer, and is not included in overtime calculations. Such bonus is not related to any contract, promise or agreement to pay the amount, and is not in response to some expectation based upon prior payment of such bonus. Those amounts do not have to be added into an employee’s wages for purposes of calculating the “regular rate” of pay on which overtime is based.

The regulations governing the calculation of overtime payments after a non-discretionary bonus payment are quite detailed and complex. Therefore, employers who pay year-end/holiday bonuses should be prepared to support the position that a bonus is discretionary, or should be knowledgeable about the methods for adding bonus amounts back into an employee’s regular rate of pay for the purpose of calculating overtime for the year.
 

Under the provisions of the American with Disabilities Act (ADA), as well as under many parallel state laws, individuals who successfully have completed a supervised drug rehabilitation program and who are no longer engaged in the illegal use of drugs are protected from employment discrimination. However, courts that have reviewed cases under this “safe harbor” provision also have held that the provision applies only to individuals who have been drug-free for a “significant” period of time.

Recently, theFourteenth Court of Appeals for the State of Texas addressed a situation in which an employee who was asked to resign immediately upon returning from a five-day hospital stay for drug dependency claimed that she had been treated in a discriminatory manner, because she had been drug-free for five days and, therefore, was “disabled” under the law. The court held that five-day period not to have been sufficient to trigger any “safe harbor” provision under the ADA or Texas law. Melendez v. Houston Independent School District, Texas App., No. 14-2010-20517, December 5, 2013.

Earline Melendez filed a lawsuit against her employer, Houston Independent School District (HISD), claiming disability discrimination after she was asked to resign from her position as a school clerk. Melendez alleged that the request for resignation came after her school principal learned that Melendez had spent five days at an in-patient program for opiate addiction. Melendez conceded that she had been addicted to pain killers since a back injury in 2009, and at times had consumed more than five times the prescribed dose. Melendez argued, however, that she had been clean at the time that she was asked to resign, as she had just completed a 5-day in-patient rehabilitation program and, therefore, was protected by the law’s “safe harbor” provision covering individuals who have been drug free for a significant period of time.

The Texas Commission on Human Rights Act (TCHRA) excludes, from the definition of “disability” under that Act, a “current condition of addiction to the use of alcohol, a drug, an illegal substance, or a federally controlled substance.” HISD argued that Melendez was not “disabled” because she admitted that she was addicted to pain medication and, therefore, was excluded from the protections of the TCHRA. Melendez responded that the safe harbor provision should apply, however, since she was not “currently” addicted on the date of her constructive discharge, and had been drug-free for the previous 5 day period.

Although neither the TCHRA nor the ADA defines the term current addiction, the Texas Court of Appeals relied on a Fifth Circuit case construing the ADA to find that “current use” of illegal drugs means that “the drug use was sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an ongoing problem.” Under that rationale, mere participation in a rehab program will not allow an individual to evade the ADA’s “current use” exclusion if the most recent drug use occurred recently enough to indicate to an employer that continuing use may be a real and ongoing problem.

Because of the confusion surrounding the issue of whether an individual’s addition is “current” or not, and therefore whether or not the ADA’s safe harbor provisions will apply, employers should review the level of responsibility entrusted to the employee, his or her past performance, and the level of competence required to do the individual’s job, in addition to reviewing the recency of the individual’s drug or alcohol use, before imposing discipline or termination based on the presumed “current” status of the addiction.
 

The federal Occupational Safety and Health Administration (OSHA) works to ensure safe and healthy conditions for working men and women on a national basis, by both setting and enforcing workplace standards, and by providing training, education and assistance to employers and employees, when necessary or requested. The agency also enforces the whistleblower protection provisions of twenty-two different statutes, protecting employees who report violations of consumer protection laws and against employers engaged in particular industries, including airlines, trucking, rail, and public transportation.

Until last week, individuals who took actions under the whistleblower provisions of one of the statutes administered by OSHA, and who believed that they hve been retaliated against because of those actions could make complaints to OSHA either by filing a written complaint or by calling the agency’s toll free telephone number or an OSHA regional or area office. Workers will now be able to electronically submit a retaliation complaint to OSHA by visiting www.whistleblowers.gov.

The online form available on the site will provide to workers who feel that they have been retaliated against because of a “whistleblower” action a method to reach out directly to OSHA for assistance. According to Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels, cited in a recent press release by OSHA, “The ability of workers to speak out and exercise their rights without fear of retaliation provides the backbone for some of American workers’ most essential protections . . . . Whistleblower laws protect not only workers, but also the public at large and now workers will have an additional avenue available to file a complaint with OSHA."

While OSHA periodically has issued regulations related to the filing of whistleblower/retaliation claims in various industries, this is the first time that individuals can file a complaint under any one of the twenty-two statutes by using a single form, available online. The form, along with detailed information on employee whistleblower rights, including fact sheets and instructions on how to submit the form in hard-copy format, if preferred, is available online at www.osha.gov/whistleblower/WBComplaint.html. Complaints submitted online will automatically be routed to the appropriate regional whistleblower investigators.

In addition to the new online form, OSHA also has formulated the Whistleblower Protection Advisory Committee (WPAC), which will advise the Secretary of Labor and the Assistant Secretary of Labor for Occupational Safety and Health on ways to improve the fairness, efficiency and transparency of OSHA’s whistleblower investigations, and will begin meeting in various subcommittees on December 10, 2013.

Clearly, it is OSHA’s intent to increase its involvement in the handling of retaliation complaints filed by whistleblowers and, in fact, to encourage the filing of such complaints by increasing the avenues available to employees for doing so. Employers should become knowledgeable about the types of actions upon which retaliation claims can be based, and should train supervisors and managers to conduct thorough and objective investigations, and to effectively document their findings, before taking such actions against an employee who previously has filed a report that could be characterized as a “whistleblower” claim under federal law.
 

One of the questions asked most often by employers relates to whether the enforcement of a “last chance agreement” with an employee who is recovering from drug or alcohol addiction is a per se violation of the Americans with Disabilities Act (ADA) or the Family and Medical Leave Act (FMLA). The 3d U.S. Circuit Court of Appeals recently answered that question in the negative. Ostrowski v. Con-way Freight, Inc., 3d Cir., No. 12-3899, unpubl’d, 10/30/13.

Thomas Ostrowski worked as a Driver Sales Representative (DSR) for Con-way Freight, a trucking company subject to federal motor carrier safety regulations. Con-way has in place strict drug and alcohol screening programs and prohibitions, and has an Employee Assistance Program for its employees.

In May 2009, Ostrowski requested a leave of absence under the FMLA to enter a rehabilitation program for the treatment of alcoholism. Ostrowski engaged in and completed the program, and returned to work without change to his wages, hours, or working conditions. However, Ostrowski was required by Con-way to sign a “Return to Work Agreement” (RWA) in which he agreed to remain “free of drugs and alcohol (on company time as well as off company time) for the duration of [his] employment.”

Within a month after agreeing to the RWA, Ostrowski relapsed, and on October 15, 2009, once again entered into a rehabilitation program for the treatment of alcohol abuse. On November 3, 2009, Ostrowski’s employment was terminated by Con-way because Ostrowski had consumed alcohol in violation of the RWA.

Ostrowski filed a lawsuit against Con-way, alleging disability discrimination and violation of the FMLA. The lower court granted summary judgment in favor of Con-way on all claims.

Although the Third Circuit upheld the lower court’s decision, it pointed out that Ostrowski’s deposition testimony and record of treatment for alcoholism was “sufficient to create a factual dispute precluding summary judgment” on the issue of whether Ostrowski was “disabled.” In other words, Ostrowski’s case could not be dismissed for a failure to prove that he was disabled – that fact could be a question for the jury. However, the Court went on to say that Ostrowski failed to submit any evidence to show that Con-way used his violation of the RWA as a pretext for discrimination.

As other courts also have recognized, “employers do not violate the ADA merely by entering into return-to-work agreements that impose employment conditions different from those of other employees.” According to the Court, although Ostrowski was subject to different standards than other company employees who did not sign RWAs, the difference was a result of his agreement, rather than of disability discrimination.

The Court also made a distinction between any alleged disability (alcoholism) and Ostrowski’s prohibited conduct (consuming alcohol). The agreement signed by Ostrowski did not keep him from working at Con-way, but simply precluded him from drinking alcohol while employed there. Therefore, according to the Court, firing him for violating that agreement did not violate the ADA.

Ostrowski’s FMLA claims similarly failed. Although Ostrowski alleged that he was fired for seeking FMLA leave, he was unable to prove that he would not have been fired had he not requested the leave.

While this is an issue of real importance and concern to employers, this case may not provide the panacea for which employers hope. This case may have turned – at least in part – on Con-way’s obligation under the Department of Transportation Regulations to maintain strict alcohol policies for its employees and if so, the case may have been decided differently for an employer in another industry. Further, the Court’s distinction between Ostrowski’s conduct (drinking) and his disability (alcohol abuse) is one that employers may have some difficulty understanding and implementing consistently.

Therefore, before disciplining or terminating an individual who is on a last chance agreement, employers should carefully review the factual background of the situation, and seek input from the company’s human resources and/or legal department.
 

According to the U.S. Office of Personnel Management (OPM), “integrity testing” is a “specific type of personality test designed to assess an applicant’s tendency to be honest, trustworthy, and dependable.” Employers often associate a lack of integrity with counterproductive workplace behaviors, including theft and workplace violence.

Problems can arise when an integrity test includes questions that may require an applicant to reveal personal information regarding his or her protected class or regarding an actual or perceived medical impairment. In those instances, the test could be violating federal antidiscrimination laws.

Recently, the Equal Employment Opportunity Commission (EEOC) was asked by an entity that “conducts integrity testing of employment applicants for third parties” to comment on specific questions included in an integrity test. The test at issue asked applicants: (1) to describe current use of methamphetamine; (2) to set forth any current use of illegal, non-prescription drugs at work; and (3) whether they would “take things from their employer without permission to get even if they felt that the employer (either the company or their boss) was treating them unfairly.” The EEOC issued an “informal discussion letter” in response to the inquiry.

Upon review, the EEOC first opined that because the test questions “do not ask applicants to disclose their arrest or conviction history,” they do not implicate Title VII liability related to discriminatory use of criminal history information. Title VII does not prohibit employers from asking applicants about current illegal drug use or the illegal use of non-prescription drugs at work, nor does it preclude an employer from asking an applicant hypothetical questions about how the applicant might react in situations that may involve illegal activity. However, the EEOC was careful to point out that an employer still may violate Title VII if evidence indicates that an integrity test was “designed, intended, or used” to discriminate against certain applicants because of protected characteristics. Further, such a test can violate Title VII if the results are adjusted or altered to screen out certain applicants in protected categories.

The EEOC then indicated that the subject integrity test also would not violate the ADA. While pre-employment tests cannot ask disability-related questions or questions that are likely to elicit information about a disability, the ADA does not protect individuals who currently are using illegal and, therefore, an inquiry on that issue does not violate the statute. However, question related to past drug addiction, use, or treatment, would, in fact, be viewed by the EEOC as violating the ADA’s prohibition on disability-related questions.

While an informal discussion letter from the EEOC does not constitute an official opinion, it indicates the position of the EEOC on a specific set of circumstances. Because the letter also sets forth certain circumstances in which the EEOC would have decided differently, it is an important roadmap for employers who are inclined to use integrity testing in their application process.