As a result of numerous security issues in this day and age, employers are looking into new technological ways to counteract security risks. One such way is the use of various types of employee biometric data to confirm the identity of an individual before giving him access to the physical or intellectual property of the employer. The obvious advantages to employers are that this data is unique to the known/approved individual and may not be duplicated. The mandatory use of such data, however, creates another, non-security-related legal issue for employers.
It’s natural that you do not want employees operating equipment or engaging in potentially hazardous work while they are under the influence of drugs or medications. While many employers with safety-sensitive jobs have a zero-tolerance policy and test for illegal drugs, you may be worried about the effect a legitimately-prescribed medication may have on an employee’s ability to work safely. Many commonly-prescribed medications can cause drowsiness or disorientation as a side effect. So, can you ask your employees if they are taking prescription medications or require your employees to notify you if they are?
Over 30 states and the District of Columbia have legislation providing citizens access to marijuana. Some states have “de-criminalized” the substance while others have legalized it for medicinal or even recreational purposes. No matter the form, these laws contradict the federal Controlled Substance Act (“CSA”) under which marijuana is categorized as an illegal controlled substance. The conflict between states’ laws and federal law regarding marijuana presents a confusing crossroad for employers.
Employers likely recall the ill-fated federal overtime rule that was proposed during the Obama administration and was struck down last year. Even though the changes to the Fair Labor Standards Act’s overtime salary threshold never came to fruition at the federal level, Pennsylvania employers should be prepared for possible changes at the state level.
Employers defend harassment claims not involving a loss of tangible employment benefits (i.e., hiring/firing, promotion, reassignment, changes in benefits) with a two-prong defense. First, they show that they exercised reasonable care to avoid such conduct and eliminate it if it occurs (an effective policy and prompt corrective action). Second, employers show that the complaining employee failed to act with reasonable care to take advantage of the policy. Employers are successful in obtaining summary judgments in such scenarios where the employee flounders on the second prong by either totally failing to use the policy or doing so belatedly – even as short as two to four months after the incident occurred. Complaining employees try to keep their claims alive, often by claiming that their failure to promptly invoke the harassment policy was not unreasonable. A generalized fear of retaliation, unsupported by specific evidence, has not carried the day for employees, and employers have successfully disposed of such cases on summary judgment.
Last week, the Third Circuit released an opinion in Minarsky v. Susquehanna County, et al., in which it reversed the district court’s award of summary judgment to Susquehanna County and remanded the case for a jury trial on the merits. What is significant about this opinion is the impact that the #MeToo movement has seemingly had on the decision. In a page-long footnote, the Court discusses the #MeToo movement, the pervasiveness of sexual harassment in the workplace, and comments on why sexual harassment victims may not, even with proper mechanisms in place, reasonably be willing to report harassment.
It’s not uncommon to make a job offer conditional on the results of a pre-employment background check. But, how often do you deny an otherwise good job applicant a job because something unexpected came back in the background check? How do you go about informing this applicant—who you told had the job (subject to the results of the background check)—that he or she is now not going to be considered for employment?
Despite the “#MeToo” Movement, it’s still not uncommon for workers to make comments concerning a co-worker’s sexual practices. Nor is it uncommon for employers to successfully defeat sexual harassment claims based on such conduct by citing the well-established case law that discrimination statutes do not mandate a pristine work environment – shop-talk is not actionable.