Management Update

Public Employer Medical Marijuana Law

By: E. Fredrick Preis, Jr. and Philip Giorlando

On August 1, 2022, Act No. 651, the new Public Employer Medical Marijuana Law, went into effect and provides more protections to employees and applicants with a proper recommendation for marijuana, but also creates more questions for public employers across the State. There are a number of issues that are not addressed in the law and will be left to Louisiana courts to resolve, including what employers are actually covered, how this law will impact worker’s compensation insurance agreements, how vicarious liability for injuries caused to others by protected employees will proceed, and the parameters around which covered employers can test employees and applicants and what results can come from any positive tests.

Regarding coverage under the law, the language of the new law specifically defines covered employers as "State employers," which supports coverage for only employees of Louisiana government. However, the section of the Revised Statutes in which the new law is added, "Public Employee Drug Testing," uses the term "public employer" to include both State employers and any local governmental subdivision that has adopted an ordinance providing that the subdivision is a public employer for purposes of the statute. So, although the language of the statute supports that the statute only applies to Louisiana State employees, the ordinances of local municipalities need to be checked to confirm that the municipality has not recognized itself as a "public employer" for purposes of this section of the law, because a court might interpret this new law broadly to be read in unison with the other statutes in the same section of the Revised Statutes. If that broad interpretation occurs, then any locality with such an ordinance may be covered depending on the language of the local ordinance.

Now that the law is effective, each municipality’s drug policy and drug testing provisions of their handbook need to be carefully reviewed to determine how this new law might impact those provisions. Because the law has been untested in the courts, any public employer facing an issue under this law will face complex legal issues that will require creative solutions to ensure it makes the best decision for the municipality and its constituents. Please feel free to call if you need assistance.

Federal Appeals Court Affirms NLRB Decision Reinstating Employee Who Defaced Company Overtime Sign-Up Sheet

By: Jerry L. Stovall, Jr.

What seemed to be a straightforward termination went sideways for Constellium Rolled Products, a maker of extruded aluminum products with over 13,000 employees worldwide. In 2020 Constellium implemented a new policy by which it started to discipline employees who voluntarily signed up to work an overtime shift and then failed to show up. (Sounds reasonable to me.) The company’s unionized employees preferred the company’s prior overtime system by which the company solicited employees individually about working overtime and did not discipline those who failed to show up.

The union and several employees filed grievances under the company’s collective bargaining agreement and unfair labor practice charges with the NLRB over the change. Some employees began to refer to the sign-up sheet as the “whore board.” One employee, Mr. Williams, went so far as to write “whore board” on the top of each sign-up sheet, which meant that employees who wanted to sign up for overtime had to sign a sheet of paper that identified them as “whores.” Constellium suspended and then terminated Mr. Williams over the incident.

The NLRB initially ruled that Constellium violated Williams’ Section 7 rights by terminating him for the “whore board” incident because the phrase, while offensive, was not so egregious that Williams lost the protection of the NLRA. (Section 7 of the National Labor Relations Act (“NLRA”) gives employees the right to engage in concerted activity to effect change to the terms and conditions of employment. Employees’ Section 7 rights, in some circumstances, include the right to engage in vulgar or offensive speech without losing the protections of the law.) The D.C. Circuit remanded the matter back to the NLRB, finding that the NLRB failed to properly assess the potential conflict between Section 7 of the NLRA and Constellium’s obligations under state and federal anti-discrimination laws to maintain a harassment-free workplace.

On remand, the NLRB again concluded that Constellium violated Williams’ Section 7 rights by firing him. This time, the D.C. Circuit affirmed the NLRB’s ruling. The NLRB and the court analyzed Mr. Williams’ termination the second time around differently than they did in the first case. Instead of analyzing whether the use of the term “whore board” was sufficiently offensive to warrant termination, the NLRB and the court analyzed whether Constellium would have terminated Mr. Williams for writing “whore board” or a similarly offensive phrase on the overtime sign-up sheet absent any connection to Section 7 activity. (Remember, the union and employees had filed ULP’s and grievances over the change in policy.)

The NLRB and the D.C. Circuit explained that because Constellium had tolerated other employees verbally referring to the sign-in sheet as the “whore board,” as well as allowing them to generally use profanity in the workplace, Constellium could not show that it would have terminated Williams absent his complaints about the new overtime policy, which amounted to protected activity under Section 7.

The D.C. Circuit Court explained: “We recognize the difficulties that sometimes come with implementing new behavioral standards in the workplace…However, we find no evidence in the record that Constellium began enforcing any such standards before Williams. This is fatal.”

Employer takeaway: Now, more than ever, it is important to evaluate every decision resulting in discipline as if it will be challenged in court. The Constellium ruling was admittedly the result of an unusual series of events, but the principle holds true:

when facing a disciplinary decision, even one that initially looks like a slam dunk, take a breath, step away and look at the situation as an objective third-party would. Look for the weak points and the aspects of the decision that may be open to challenge, and do your best to address them before making the decision. As HR professionals, we know that pushing back on a supervisor who really wants to fire that employee right now is not the most pleasant part of our jobs, but often a little push back now can avoid a lot of headaches later.

The OFCCP May Be Planning to Release Your 2016-2020 EEO-1 Reports. What Can You Do?

By: Jerry L. Stovall, Jr.

On August 19, the OFCCP published a notice advising employers that it is planning to produce confidential information that is protected from disclosure under a statutory exemption (Type 2 EEO-1 report data) in response to a Freedom of Information Act (FOIA) request by Mr. Will Evans of the Center for Investigative Reporting. Employers have until September 19, 2022, to file written objections to this disclosure.

The FOIA request technically covers only federal contractors and their first-tier subcontractors. However, it is not unusual for employers to mistakenly identify themselves as a federal contractor or subcontractor when filling out section 3 of the report, or for the OFCCP to list non-federal contractors as federal contractors on its Corporate Scheduling announcements. It looks like the OFCCP is preparing to produce the confidential Reports of well over 15,000 employers. Employers should not assume that their data will not be produced simply because they are not federal contractors or subcontractors.

If you do not want your confidential EEO-1 Report data produced, there are a couple of steps that you can take. First, you can contact the OFCCP and ask if your information is among the list that the OFCCP intends to produce, and if so, request a copy of the data. Second, you can file an objection to the production of your data in response to this FOIA request. Written objections and requests for information should be submitted to the OFCCP via U.S. Mail or email and must be received by the OFCCP by September 19, 2022.

For further information, you can contact Candice Spalding, Deputy Director, Division of Management and Administrative Programs, Office of Federal Contract Compliance Programs, 200 Constitution Avenue NW, Room C-3325, Washington, DC 20210. Telephone: 1-855-680-0971 (voice) or 1-877 -889-5627 (TTY).