4/20/16. Public Employee Drug Testing Litigation Landmines. & How To Avoid Them. Meet the Presenter. Legal Disclaimer

Transcription

1 Public Employee Drug Testing Litigation Landmines & How To Avoid Them Meet the Presenter Bar & Court Admissions Alabama, 1980 Georgia, 1981 U.S. District Courts, AL & GA, 11th Circuit Court of Appeals U.S. Supreme Court Education Cumberland School of Law, Samford University, Birmingham Alabama J.D., cum laude Tommy Eden's law prac8ce is principally in the areas of Management Labor and Employment Law; Drug Tes8ng Law (DOT Regulated and Non- Regulated) throughout the United States; defense of employers in federal court in all aspects of employment li8ga8on including claims under Title VII, ADA, FMLA, FLSA, ADEA, and retaliatory discharge ac8ons; defense of employers in charges brought with the EEOC, Wage and Hour Division, Na8onal Labor Rela8ons Board, and the Department of Labor; and li8ga8on over employee benefits under ERISA and frequent speaker on Affordable Healthcare topics. He also counsels employers on Immigra8on compliance under the Alabama Immigra8on Act and conduc8ng I- 9 audits under the Federal Immigra8on Act. Auburn University, Auburn, Alabama B.A., Legal Disclaimer This presentation is for educational purposes only and is not intended as a substitute for the legal advice of an attorney knowledgeable in the field of work place drug and alcohol testing. The presenter makes no assurances regarding the accuracy or completeness of the following information. Legislative, regulatory or case law. "No representa,on is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers." 1

2 LANDMINE #1: Pre-employment Testing Non-Safety Sensitive Personnel Barron v. City of Hollywood, FL LANDMINE #1: Pre-employment Testing Non-Safety Sensitive Personnel Pre-Employment Drug Testing Define Safety Sensitive in Policy Evaluate Job Classifications based on Definition List Covered Job Classifications in policy Notify Employees by inclusion of Safety Sensitive in job descriptions LANDMINE #2: Drug Test Refusal Done Wrong Ward v. Municipal Utilities Board of Decatur, Alabama 2

3 LANDMINE #2: Drug Test Refusal Done Wrong Drug Test Refusal Consistently following a well-drafted DOT compliant public entity drug testing policy is absolutely critical. A refusal under DOT regulations cannot be remedied by a later offer to be tested by the employee, but make sure you have documentation to prove a refusal. Seeking wise counsel when faced with a difficult dilemma is good risk reduction. LANDMINE #3: When Suspicions Are Not Reasonable Hudson v. City of Riviera Beach, Florida LANDMINE #3: When Suspicions Are Not Reasonable Reasonable Suspicion Define Reasonable Suspicion in your policy Create 2 Checklists (contemporaneous and chronic) Train your Supervisors on Reasonable Suspicion and your 2 checklists Observations in writing of two Trained Supervisors will eliminate personal bias issues 3

4 LANDMINE #4: Disciplining Employees Who Voluntarily Come Forward DePalma v. City of Lima, Ohio LANDMINE #4: Disciplining Employees Who Voluntarily Come Forward Tough Love Employers Admission of a Substance Abuse problem may be an ADA-covered event and trigger reasonable accommodation obligations Last Chance Agreement is Disciplinary Action Balance Workplace Safety with Accountability in your discussions with employees Use a Written Work Continuation Agreement if ADA triggered LANDMINE #5:Anonymous Tip is Not Reasonable Suspicion Greer v. McCormick (Detroit Department of Water and Sewage) 4

5 LANDMINE #5:Anonymous Tip is Not Reasonable Suspicion Anonymous Tip Recognize the Constitutional Protections and possibility of individual manager liability Establish the Reliability of the Source Reasonable Suspicion that is not Individualized Last Chance Safer Alternative in close situations Learning from other mistakes is always a good idea since you do not have time to make all the mistakes yourself. Questions? Contact the Presenter(s) Constangy, Brooks, Smith & Prophete, LLP D Frederick Road Opelika, AL Direct Cell teden@constangy.com 5