Legal Report June 2010
U.S. JUDICIAL DECISIONS
MEDICAL TESTING. A federal appeals court has ruled that a litigant may pursue his claim against a prospective employer who refused to hire him after learning he had epilepsy. The court found that a jury must determine whether questions asked after the employee failed a drug test violated federal law against preemployment medical inquiries.
John Harrison was a temporary worker employed by Aerotek in November 2005. He was assigned to Benchmark Electronic Huntsville, Inc. (BEHI), where he repaired and tested electronics. BEHI had a policy whereby if a supervisor believed that a temporary employee would be a good match for BEHI, the supervisor would invite that employee to submit an application for employment. The applicant would also have to undergo a background check and a drug test.
In May 2006, Harrison’s supervisor, Don Anthony, saw potential in him and suggested that he submit an application for permanent employment. Harrison, who had been diagnosed with epilepsy as a child, did not tell Anthony about his medical history.
As part of the hiring process, Harrison submitted to a drug test. In July, Lena Williams, an employee in BEHI’s human resources department, was notified that Harrison’s drug test had come back positive. Williams called Anthony and asked him to send Harrison to her office. Williams later testified that she did not tell Anthony why she wanted to see Harrison and that she kept all drug test information confidential.
However, Anthony somehow found out that Harrison had tested positive for barbiturates and asked him about it. Harrison told Anthony that he had a prescription for the medication. Anthony asked Harrison to retrieve the medication. Then Anthony called the medical review officer (MRO) working on Harrison’s case. He handed the phone to Harrison, setting up a situation where, while Anthony was in the room, Harrison spoke to the MRO, answering questions about the medication and his epilepsy. Anthony did not ask Harrison any questions. Anthony later denied knowing that Harrison suffered from epilepsy.
Within a few weeks, the MRO cleared Harrison for work. However, Anthony told human resources that he no longer wanted to hire Harrison, and he asked Aerotek not to send Harrison to BEHI in the future. Anthony told Aerotek that Harrison had made threatening remarks and that he had a performance and attitude problem. Aerotek fired Harrison.
Harrison sued BEHI, claiming that the company conducted an improper medical inquiry in violation of the Americans with Disabilities Act (ADA) and that the company failed to hire him because of a perceived disability. BEHI requested summary judgment—a hearing based on the facts of a case without a trial. The company argued that because Harrison tested positive for barbiturates, it was authorized to inquire whether Harrison had a legitimate use for such medication.
The U.S. District Court for the Northern District of Alabama granted the summary judgment. Harrison appealed the decision. The U.S. Court of Appeals for the Eleventh Circuit overturned the lower court’s ruling. The appeals court found that while the ADA does allow companies to ask follow-up questions after a positive drug test, they may not ask questions that are likely to result in disclosures about a disability. The court noted that a jury could find that Anthony violated that act by being in the room when Harrison discussed his medication. In the written opinion of the case, the court said that “a reasonable jury could infer that Anthony’s presence in the room was an intentional attempt likely to elicit information about a disability in violation of the ADA’s prohibition against preemployment medical inquiries.” (Harrison v. Benchmark Electronics, U.S. Court of Appeals for the Eleventh Circuit, No. 08- 16656, 2010)
BACKGROUND SCREENING. The U.S. Supreme Court has agreed to hear a background screening case in which 28 employees of the California Institute of Technology, under contract to do work for the National Aeronautics and Space Administration (NASA), have claimed that the government’s screening policy is too intrusive. The policy was implemented in 2004 under a government homeland security directive.
In the case, the U.S. Court of Appeals for the Ninth Circuit ruled that the policy of conducting background screening on existing, low-security contract employees was too invasive. The policy allows the government to collect any information from any source including schools, former employers, businesses, and personal friends. According to the government’s policy, sources are encouraged to reveal any adverse information about a person’s “employment, residence, or activities.”
The appeals court ruled that the background screening requirements raise privacy issues and do not further the government’s legitimate interests because they target existing, low-level employees, some of whom have worked for the same company for more than 20 years.
The government appealed the appellate ruling to the U.S. Supreme Court. In their request that the Court hear the case, the U.S. Department of Justice argued that the decision has far-reaching consequences for background screening and homeland security. The request noted that former President George W. Bush issued the homeland security directive in question “in response to concerns that arose after September 11, 2001, about individuals gaining access to federal facilities through identification fraud.” The request further noted that the U.S. Department of Commerce and NASA determined that a good way to ensure the security of federal facilities was to require that all contract employees be subjected to the new screening policy. (Nelson v. NASA, U.S. Court of Appeals for the Ninth Circuit, No. 07-56424, 2008)
U.S. CONGRESSIONAL LEGISLATION
WHISTLEBLOWERS. According to the most recent Bureau of Labor Statistics figures, 16 workers die, on average, every day on U.S. worksites, and more than four million workers suffer workplace injuries every year. To address the topic of how workplace safety laws can be improved, lawmakers on the House Education and Labor Committee’s Subcommittee on Workforce Protections held a hearing on H.R. 2067, which would amend the Occupational Safety and Health Act of 1970 (OSHA) by increasing penalties for violators and boosting protections for workers who become whistleblowers.
John C. Cruden, deputy assistant attorney general of the Department of Justice’s Environment and Natural Resources Division, testified in favor of the bill, telling subcommittee members that the increased penalties would provide the government with tools for combating workplace injuries. Under current law, when an employee is injured due to unsafe working conditions, employers can only be prosecuted if the employee dies, and even then they can only be charged with a misdemeanor offense.
H.R. 2067 would make such crimes a felony and would require prison terms of up to 10 years for employers, including executives, whose negligence results in the death or serious injury of an employee.
David Michaels, assistant secretary for occupational safety and health for the U.S. Department of Labor, testified in support of the bill. Michaels noted that the current average OSHA penalty is $1,000 and, in 2007, the median penalty proposed for investigations where a worker was killed was $5,900. “Clearly, OSHA can never put a price on a worker’s life and that is not the purpose of penalties—even in fatality cases,” Michaels said. “OSHA must, however, be empowered to send a stronger message in cases where a life is needlessly lost.”
Michaels told the subcommittee that monetary penalties for violations of OSHA have been increased only once in 40 years and that H.R. 2067 would help address this problem by increasing penalties across the board for all types of violations. Specifically, the bill would increase penalties for willful or repeat violations that involve a fatality to as much as $250,000.
Jonathan Snare, an attorney with Morgan Lewis & Bockius, LLP, who spoke on behalf of the U.S. Chamber of Commerce, disagreed that the new penalties would help improve workplace safety and would instead punish responsible companies for the acts of a few disreputable firms. “This effort to change the OSHA Act…appears to be driven by the conduct of a few outlier employers who fail in their workplace safety and health obligations.”
Michaels praised the whistleblower protections in the bill. H.R. 2067 would prohibit employers from implementing policies that discourage workers from reporting injuries or illnesses or that discriminate against or provide for adverse action against any employee for reporting such incidents. The bill would also make it illegal for employers to retaliate against employees participating in workplace inspections by reducing wages or benefits.
These provisions, Michael said, bring OSHA in line with standards in other government whistleblower statutes. “There is no reason that workers speaking up about threats to their safety and health should enjoy less protection than workers speaking up about securities fraud or transportation hazards,” he said.
CYBERSECURITY. A bill (S. 773) that would establish a high-level cybersecurity office in the government and encourage public-private partnerships to improve cybersecurity has been approved by the Senate Commerce, Science, and Transportation Committee. The bill must now be considered by the full Senate.
The bill would establish the cabinet-level position of national cybersecurity advisor. This office would develop a comprehensive national strategy for cybersecurity, oversee a cybersecurity review to be conducted every four years, and undertake a threat and vulnerability assessment of public and private-sector critical infrastructure.
S. 773 would also establish a public-private clearinghouse to facilitate sharing of cyberthreat and vulnerability information. The National Institute of Standards and Technology would be charged with setting cybersecurity standards that would be applicable to both the government and the private sector. Also, those working in cybersecurity would be licensed and certified under a national program.
EMPLOYMENT. An amendment to the Intelligence Authorization Act for 2010 (H.R. 2701) will establish a process for ensuring that there is no conflict of interest present when employees within the intelligence community take second jobs. The amendment will also prohibit employees within the intelligence community from owning companies that sell expertise related to the employee’s government service.
H.R. 2701 has been approved by the House of Representatives and will now be taken up by the Senate.
FIREARMS. A new Oklahoma law (formerly H.B. 1025) makes it illegal for employers to ask employees about their ownership of firearms. Under the law, private employers would be barred from asking applicants whether they own or possess a firearm. Violation of the law is punishable by a $1,000 fine.
The bill also makes it illegal for public employers and public officials to ask applicants about firearm possession or ownership. Those who violate the act will also be subject to civil liability. Violators will be deemed to be acting outside the scope of their employment and will be barred from seeking immunity based on their government status.
CREDIT CHECKS. A new law (formerly S.B. 1045) recently enacted in Oregon will prohibit most employers from conducting a credit check on current or prospective employees. The law exempts some types of employees—such as those who work at federally insured banks and credit unions, law enforcement personnel, airport security, and any other employee who must undergo a credit check as a matter of law. The law also allows an employer to conduct a credit check if it is “substantially job-related.” To exercise this exemption, employers must disclose the reasons for the check to the employee in writing. The law will not affect the use of other types of background checks.
This column should not be construed as legal or legislative advice.