HR COMPLIANCE LIBRARY
Ideas & Trends
SEPTEMBER 2, 2015
ISSUE NO. 774

INSIDEBENEFITS................................... 75
Vehicle-related benefits continue torank high with employees
BENEFITS................................... 75
Benefits remain a key tool for
recruitment and retention
VETERAN EMPLOYMENT........ 76
Department of Labor opens 2015
VETS-4212 filing period
COMPENSATION..................... 77
U.S. companies planning similar
pay raises for 2016
IMMIGRATION.......................... 78
Should more foreign workers be
employed in the U.S.?
MARIJUANA LEGALIZATION.... 78
It’s high time to review drug
policies thanks to marijuanalegalization trend
HR QUIZ.....................................80
HR NOTEBOOK........................ 81

EMPLOYEE RELATIONS

Employer branding versus employee rights:
knowing where to draw the line
Today employees and the public are generally aware of product branding and a company’s need to protect its brand in the marketplace. But how far can an employer goin prohibiting employee activities that it regards as potentially damaging its brandin the public’s eye? That was the question addressed by the D.C. Circuit in Southern
New England Telephone Co. v. NLRB. The appeals court ruled that although Section
7 of the NLRA protects the right of employees to wear union apparel at work, underthe “special circumstances” exception to that rule, AT&T lawfully prohibited publicly
visible employees from wearing “Inmate/Prisoner” shirts.

Understanding the AT&T caseAs part of a public campaign to put pressure on AT&T during contentious contract negotiations, the union representing AT&T technicians distributed T-shirts to
its members. The front of the shirt said “Inmate #” and had a black box beneath thelettering. The back of the shirt said “Prisoner of AT$T,” with several vertical stripes
above and below the lettering. The shirt contained no reference to the union or to theongoing labor dispute.
Under AT&T’s appearance standards, publicly visible employees are required to present a professional appearance at all times and to refrain from wearing clothing with“printing and logos that are unprofessional or will jeopardize” the “Company’s reputation.” Under this policy, AT&T banned employees who interact with customers orwork in public from wearing the union T-shirts. It issued one-day suspensions to 183
employees who did not comply with the directive to remove the shirt.
In response, the union filed an unfair labor practice charge contending that AT&T
infringed employees’ Sec. 7 rights by suspending the employees. Finding that “thetotality of the circumstances would make it clear” that a technician wearing the shirt
was an AT&T employee “and not a convict,” the NLRB majority found that the prohibition violated the NLRA.
“Special circumstances” doctrine. The Supreme Court has long recognized, since
Republic Aviation Corp. v. NLRB, that under the “special circumstances” doctrine,a company may lawfully ban union messages on publicly visible apparel on the job
when it reasonably believes the message may harm its relationship with its customers
or its public image. The “special circumstances” exception is designed “to balance thepotentially conflicting interests of an employee’s right to display union insignia and an
employer’s right to limit or prohibit such display,” the D.C. Circuit observed. “Special

HR COMPLIANCE LIBRARYSEPTEMBER 2, 2015 ISSUE NO. 774

circumstances” include “protecting the employer’s product”
and “maintaining a certain employee image.”74

sistent clothing “inaccurately represents the brand, causes
consumer confusion, fails to perform an essential functionof the position, and ultimately damages the brand.”

When a company issues dress and grooming policies, its
strongest position is to communicate and justify dressand grooming requirements based upon objective job
requirements. A strong connection between dress or
grooming and job performance will place the company
in the best position to defend the policy to employees
and third parties.
Unreasonable application. In this case, the appeals court
determined that the Board applied the “special circumstances” exception in an unreasonable way. The appropriate test
for “special circumstances” is not whether AT&T’s customers
would confuse the “Inmate/Prisoner” shirt with actual prison
garb, but whether AT&T could reasonably believe that themessage might harm its relationship with its customers or its
public image. To resolve this case, it was enough to ask thequestion: “What would you think about a company that permitted its technicians to wear such shirts when making home
service calls?” Consequently, in the Southern New England
Telephone case, the appeals court ruled that the Board shouldhave held that “special circumstances” applied.

However, in EEOC v. Abercrombie &Fitch Stores, Inc., the U.S. Supreme
Court held that the retailer’s refusal
to hire a Muslim applicant because
her headscarf conflicted with thestore’s “Look Policy” violated Title
VII. In Abercrombie, a practicing
Muslim woman applied for a sales
position. Her interviewer was concerned whether her headscarf was aforbidden cap, which would conflict with the retailer’s Look
Policy. Indeed, a district manager told the interviewer thatthe applicant’s headscarf would violate the Look Policy, as
would all other headwear, religious or otherwise.
In addition to the headscarf, Abercrombie has used its“Look Policy” to justify not hiring individuals because of
tattoos, body piercings, and weight. Abercrombie has previously been taken to task for marketing campaigns that perpetuate racial stereotypes by avoiding Asian and AfricanAmerican models.

Takeaway for employers

The Look Policy. But just how far can an employer take its
dress code in attempting to establish its brand? Retailer Abercrombie & Fitch required employees in its stores to comply witha “Look Policy” intended to promote the Abercrombie brand.
Accordingly, employees were required to dress in clothing consistent with clothes that Abercrombie sold in its stores. While
the policy prohibited employees from wearing black clothingand “caps,” it did not explain the meaning of the term “cap.”

Employers have a recognized interest in ensuring that employees who deal with customers promote a good public image. When a company issues dress and grooming policies, its
strongest position is to communicate and justify dress andgrooming requirements based upon objective job requirements. A strong connection between dress or grooming andjob performance will place the company in the best position
to defend the policy to employees and third parties.

Because Abercrombie claimed it did very little advertising through traditional media outlets, it contended thatits Look Policy was critical to the health and vitality of its“preppy” and “casual” brand. It argued that a sales-floor
employee who violated the Look Policy by wearing incon-

So what factors should an employer consider in developing
a dress code?

Managing Editor
Heidi J. Henson, J.D.
Contributing Editors
Deborah Hammonds, J.D.
David Stephanides, J.D.

Business justification–The key factor in determining
whether a personal appearance and dress code is justified

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HR COMPLIANCE LIBRARY

is the nature of the work performed by the individuals
to whom the code is applied. For example, it is more reasonable for a department store to set certain appearance
standards for its sales personnel than for a machine shop
to establish appearance standards for its workers.
Privacy–Requiring a specific type of dress or personal
appearance may be an intrusion into the personal livesof employees.
Safety–Another factor that employers should consider
when establishing dress codes is safety. For example,
most employers require employees to wear hard hats
when on a construction site because of the danger ofheavy, falling objects.

SEPTEMBER 2, 2015 ISSUE NO. 774

75

Morale–Beards and hair styles have been a problem forsome employers in the past. Absent justification for the
restrictions, no-beard and hairstyle policies can cause
disruption and morale problems. They may even cause
the good, creative, and independent employee to leave.
Legal compliance–Dress and appearance policies andregulations bring on legal responsibilities. For example,
an employer can’t use a dress policy to justify its refusal
to accommodate the religious practices of job applicantsor employees. n
Source: Article written by Ronald Miller, J.D. and originallypublished in the August 5, 2015 edition of Employment Law
Daily, a Wolters Kluwer Law & Business publication.

BENEFITS

Vehicle-related benefits continue to rank high with employees
Powered by signs of an economic recovery, automobile allowances continue to be popular employee benefits programs for United States companies according to a new survey, "Vehicle-Related Benefits Programs" by WorldatWork
and underwritten by Runzheimer International. WorldatWork conducted the 2015 survey of its membership to better understand the prevalence and perceptions of vehiclerelated benefits programs. WorldatWork conducted similarvehicle-related surveys in 2011 and 2008.
"Inconsistent fuel costs have done little to sway corporate
America's opinion on vehicle-related programs. We're witnessing companies continuing to use a combination of automobile perks as employee benefits and as effective tools
to satisfy top talent," said Lenny Sanicola, practice leader at
WorldatWork.
Nearly 9 of 10 (89 percent) organizations surveyed offer a car
allowance, company car, fuel reimbursement or other vehicle
benefit to at least some of their workforce. While vehicle allowance has increased to 69 percent since 2011, the overall allowance has decreased significantly from 76 percent in 2008.
Vehicle-related benefits programs were most prevalent in the
United States (74 percent), followed by Canada (24 percent),

Western Europe (21 percent) and United Kingdom (20 percent). While domestic programs remain stable, international
vehicle benefits programs have slightly increased since 2011.
A few additional highlights from the 2015 survey include:
70 percent of respondents report fuel or mileage reimbursement as the most common vehicle related benefit.
While 69 percent of those surveyed report car allowanceas the most popular program.
Similar to findings in 2008 and 2011, in 2015, 75 percent of organizations offer a car allowance to executives
while 66 percent provide executives with a personal vehicle. Fuel for mileage reimbursement is widely eligible
among sales professionals (49 percent) and employeeswith a bona-fide business need (69 percent).
Four percent of companies report vehicle benefit programs are believed to have a positive impact on employee satisfaction.
Two-thirds of organizations (66 percent) always orsometimes promote their vehicle-related programs as a
key employee benefit to attract new employees. n
Source: WorldatWork.

BENEFITS

Benefits remain a key tool for recruitment and retention
In spite of major changes in the health care landscape, smallbusiness owners looking to recruit and retain top employees
still need to pay close attention to their benefits offerings.
According to the 2015 Aflac WorkForces Report for Small
Businesses released by Aflac, a majority of workers employedin small businesses are willing to consider a job with slightly
lower pay but better benefits, while half of potential jobchangers say improving their benefits package could keepthem right where they are.
© 2015 CCH Incorporated. All rights reserved.

HR COMPLIANCE LIBRARY"The Affordable Care Act has enabled more Americans
to obtain health care benefits, but it has not reduced theoverall costs or the health care concerns of the majority of
employees," said Aflac Senior Vice President, Chief Human
Resources Officer Matthew Owenby. "Offering robust benefits, including major medical and voluntary insurance, remains an important factor for small businesses to keep employees happy while increasing growth opportunities."
Employees confirm role of benefits in job decisions. With
the U.S. Bureau of Labor Statistics' July 2015 unemployment
rate at 5.3 percent, small businesses realize the battle for talentis getting tougher. As a positive sign of their hiring ambitions,
the Aflac study found more than one-third (34 percent) ofdecision-makers expect to hire full-time employees, while 28
percent believe they will hire part-time employees in the next
12 months. Continuing to offer benefits to recruit and retain
employees is important to meeting workers' preference forstrong benefits packages. According to the study:
Almost 6 in 10 (59 percent) workers at small companies
are at least somewhat likely to accept a job with slightly
lower pay but better benefits;
Nearly half (49 percent) of small-business employees
who at least somewhat agree they'll be looking for jobs
in the next year also say improving their benefits package
is one thing their employers could do to keep them intheir jobs; andAlmost 9 in 10 (87 percent) employees at least somewhat agree they consider voluntary insurance to be partof a comprehensive benefits program.

SEPTEMBER 2, 2015 ISSUE NO. 774

76

Small-business owners appear to be listening. While their
top business objective in 2015 continues to be controlling
costs, the 2015 Aflac study found that the percentage ofsmall-business employers offering voluntary insurance to employees compared to 2014 has increased from 18 to 22 percent, a move that may be leading to more satisfied employees.
Compared to those not offered voluntary benefits at work,small-business employees enrolled in voluntary benefits are
more likely to be very or extremely satisfied with their jobs
and their overall benefits packages as well as are more likely
to believe the benefits package offered by their employer
meets their family needs well:
74 percent are very or extremely satisfied with their jobs
(17 percent more than those not offered voluntary benefits by their employer).
71 percent are very or extremely satisfied with the benefits offered by their employers (48 percent more thanthose not offered voluntary benefits at work).
73 percent report the benefits package offered meets theircurrent family needs very or extremely well (40 percent
more than those not offered voluntary benefits on the job).
"As competition for top employees heats up, employers
know they need to ante up when it comes to compensation packages. It seems that health care benefits, both major
medical and voluntary benefits, are prime areas to upgradein order to lure and hold onto top talent," Owenby said. n
Source: Aflac.

VETERAN EMPLOYMENT

Department of Labor opens 2015 VETS-4212 filing period
The VETS-4212 reporting cycle for 2015 is now open, andthe filing deadline for the reports is September 30. Filinginformation is available on the DOL’s Veterans’ Employment and Training Service (VETS) website at http://www.
dol.gov/vets/vets4212.htm.
The Vietnam Era Veterans’ Readjustment Assistance Act of1974 (VEVRAA), 38 USC Section 4212(d), requires federal
contractors and subcontractors subject to the Act’s affirmative action provisions in 38 USC Section 4212(a) to track
and report annually to the Secretary of Labor the numberof employees in their workforces, by job category and hiringlocation, who belong to the specified categories of veteransprotected under the statute. Generally, the reporting cycle begins annually on or around August 1 and ends September 30.
Regulatory changes. The reporting form for this requirement is administered by VETS. Previously, the required

forms were the VETS-100 and VETS-100A forms, depending on the dollar amount of the relevant government contracts and whether those contracts were entered into on orafter December 1, 2003. The two forms had been necessary
due to significant changes to VEVRAA made by the Jobs for
Veterans Act of 2002 (JVA) that apply to contracts enteredinto on or after December 1, 2003.
In the September 25, 2014 edition of the Federal Register,
VETS published a final rule (effective October 27, 2014)
amending its regulations at 41 CFR Part 61-300 which
set forth the 38 USC Section 4212 reporting obligationsof federal contractors (79 FR 57463-57476). The final rule
rescinded the agency’s regulations at 41 CFR Part 60-250
which had established the VETS-100 reporting obligation
and revised the regulations at 41 CFR Part 61-300 which
required the VETS-100A report.
© 2015 CCH Incorporated. All rights reserved.

HR COMPLIANCE LIBRARYVETS rescinded the regulations at Part 60-250 because they
were obsolete. Contracts subject to the pre-JVA standards nolonger exist, either because they have been modified, rendering
them subject to the JVA standards, or have since ended, VETS
noted in the preamble to the final rule, explaining that the Federal Acquisition Regulations (FAR) generally limit the length ofgovernment contracts to a maximum period of five years.
The final rule revised the Part 60-300 regulation to require
contractors and subcontractors to report the specified information for protected veterans in the aggregate rather
than for each of the categories of veterans protected under
the statute. It also: (1) renamed the required annual report,“Federal Contractor Veterans' Employment Report VETS4212”, (2) revised the definitions of some terms used in theregulations; (3) revised the text of the reporting requirements clause included in government contracts and sub-SEPTEMBER 2, 2015 ISSUE NO. 774

77

contracts, and (4) revised the methods of filing to allow forelectronic filing.
Form approval. On November 19, 2014, the Office of Management and Budget (OMB) approved the VETS-4212 form
for use through November 30, 2017. On July 28, 2015, VETS
sought approval of a non-material change to the VETS-4212
form because the contractor responsible for receiving the report form changed their physical address and VETS updated
its web addresses and email information. Also, VETS requested approval to discontinue the VETS-100A form because it
has been replaced by the VETS-4212 form, and therefore, nolonger has practical utility for the agency. The OMB approved
this request the following day. 2015 is the first year of implementation for the VETS-4212 form. n
Source: Written by Cynthia L. Hackerott, J.D.

COMPENSATION

U.S. companies planning similar pay raises for 2016
Pay raises for U.S. employees are expected to hold steady in2016, according to a survey by Towers Watson. The nationwide survey of more than 1,100 U.S. companies also foundthat employers continue to reward their best performers
with significantly larger pay raises as they look for ways toretain top-performing talent in a tightening labor market.
The survey, conducted by Towers Watson Data Services,
found that virtually all respondents (98 percent) are planning to give employees raises next year and are projecting
average salary increases of 3.0% in 2016 for their exempt
nonmanagement (e.g., professional) employees. That’s thesame increase these employees received this year and in 2014.
Employers are also planning 3.0% salary increases for nonexempt salaried and nonexempt hourly employees. Executives
and management employees can expect increases that will
average 3.1% in 2016. The number of companies that are
giving raises has risen steadily since the recession in 2008.
“To a large extent, 3% pay raises have become the newnorm in corporate America. We really haven’t seen variation from this level for many years,” said Sandra McLellan,
North America practice leader, Rewards, at Towers Watson.
“While most organizations are finding the talent they needat current salary levels, we are seeing more employers prioritizing how their salary budgets are being spent, especially inlight of their ongoing difficulty in attracting and retaining
top performers or employees with critical skills.”
Indeed, the survey also found that exempt workers who
received the highest performance ratings were granted anaverage salary increase of 4.6% this year, about 77 percent

larger than the 2.6% increase given to workers receiving an
average rating. Workers with below-average performance
ratings received salary increases of less than 1%.
“We’ve seen many companies make dramatic changes totheir approach to performance management, including
eliminating formal performance reviews or taking a ‘ratingless’ approach to reviews. Many organizations are rethinking
whether linking base salary increases primarily to last year’s
performance makes sense or if this should be the role ofshort-term-incentive and bonus programs,” said McLellan.
In fact, the survey also revealed that more employees are becoming eligible to receive annual and short-term incentives,and more are also receiving awards. More than eight in 10(85 percent) exempt employees received a bonus this year,
up from 81 percent in 2014. Meanwhile, 87 percent of exempt employees were eligible to receive an annual or shortterm bonus this year, up slightly from 86 percent last year.
“It’s no longer all about base salary. While our research consistently shows the importance of pay when employees decide to stay or leave an organization, we also know theirdecisions are not just about the money. Opportunities forcareer development, learning development and challenging work are top drivers of retention. It’s the value of thetotal package — compensation, benefits and nonmonetary
rewards — that makes the difference. As a result, companies
are paying closer attention to understanding how employees
value these elements,” said McLellan. n
Source: Towers Watson.
© 2015 CCH Incorporated. All rights reserved.

HR COMPLIANCE LIBRARYSEPTEMBER 2, 2015 ISSUE NO. 774

78

IMMIGRATION

Should more foreign workers be employed in the U.S.?
Should the U.S. government raise the cap on H-1B visas
and allow more foreign workers to be temporarily employedin the U.S.? Twenty-seven percent of employers say yes withmore than half of these employers expressing concern overa widening talent gap and citing the residual benefit of furthering progress in STEM-related fields (science, technology, engineering and math). The national survey, which was
conducted online by Harris Poll on behalf of CareerBuilder
from May 14 to June 3, 2015, included a representative
sample of 2,321 hiring managers and human resource professionals across industries and company sizes.

Crossing borders to fill the gap. Employers struggling tofill high-skill jobs say they are investing more in training
and/or importing new talent. Nearly half (46 percent) of
employers have hired a low-skill worker and trained themfor a higher-skill job within the last two years.

Twenty-six percent of employers said they are hiring
workers with H-1B visas this year, which enables them totemporarily employ foreign-born workers for specialized
occupations. Thirteen percent of all employers said they
tried to hire workers with H-1B visas this year, but weredenied, in part, due to the volume
of companies applying for them.
Should the U.S. government raise the cap on H-1B
Others said they didn't apply intime or didn't meet requirements.
visas and allow more foreign workers to be temporarily

employed in the U.S.? Twenty-seven percent of
employers say yes.
Extended vacancies causing extensive problems. Thirty-six
percent of employers said they currently have positions thatstay open for 12 weeks or longer. On average, these companies
reported losing around $14,000 for every job that stays vacant
for this length of time; around 1 in 6 loses $25,000 or more.
Among the challenges employers have faced due to extended
job vacancies are loss of revenue (34 percent), lower qualityof work due to employees being overworked (36 percent),
declines in customer service (35 percent) and work simply
not getting done (48 percent).

Among occupations for which employers are recruiting workers with
H-1B visas this year are:

Software engineers – 19 percent;
Systems analysts and programmers – 11 percent;
Database administrators – 9 percent;
Network administrators – 9 percent;
Sales and distribution managers – 9 percent;Financial analysts – 9 percent;Electrical and electronic engineers – 8 percent; andMechanical engineers – 8 percent. n
Source: CareerBuilder.

MARIJUANA LEGALIZATION

It’s high time to review drug policies thanks to marijuana legalization trend
Earlier this year, the headline of a Washington Post editorial declared, “Pot is increasingly legal. Employers need tostop screening for it.” While the first statement is undeniably true, it’s no reason for employers to stop testing employees and applicants for marijuana—even if the employer
operates in a state that has legalized medical marijuana orrecreational use of the drug. Legalization doesn’t remove
the many reasons for marijuana screening, which include
workplace safety, productivity and health concerns, limiting
health insurance costs and protecting your company image.

By the numbers
The marijuana legalization trend began in 1996, when
California voters passed Proposition 215, making theGolden State the first in the nation to permit the medical
use of marijuana. Since then, marijuana legalization laws
have been enacted in large swaths of the country, and thetrend is showing no signs of slowing. Today, the situation
is as follows:
23 states and Washington, D.C., have legalized marijuana in some form, with Alaska, Colorado, Oregon, Washington and Washington, D.C. legalizing recreational use;
25 million Americans have used marijuana in the past
year; and14 million Americans use marijuana regularly.
Evidence suggests that legalization causes the number ofmarijuana users to rise. According to Quest Diagnostics,© 2015 CCH Incorporated. All rights reserved.

HR COMPLIANCE LIBRARY

positive marijuana tests increased 20 percent and 23 percent
in Colorado and Washington, respectively, since 2012, theyear those states legalized recreational use. Should the current trend of states moving to permit recreational marijuanacontinue, we could see a substantial rise in use of the drug.
As for the federal level, while it’s unlikely we’ll see recreational marijuana use legalized nationally any time soon, there is
movement on the medical marijuana front. In March, Republican Senator Rand Paul and Democratic Senators Cory
Booker and Kirsten Gillibrand introduced unprecedented
legislation that would “allow patients, doctors and businesses in states that have already passed medical-marijuanalaws to participate in those programs without fear of federal prosecution.” Although most experts, including advocates, agree the bill won’t be passed due to opposition frommany conservatives, it is, as Time magazine noted, a signthat “some of the winds legalization advocates …have beenfighting against for decades are now at their back.”

SEPTEMBER 2, 2015 ISSUE NO. 774

Continue our drug testing program: 54 percent.
We don’t have a drug testing program: 20 percent.
Ignore positive tests for marijuana: 12 percent.
Overlook past convictions for minor marijuana offenses:
10 percent.
Discontinue our drug testing program: 2 percent.
What’s enlightening about these results is how few employers would ignore or overlook positive tests or past marijuana
offenses, and how few would end their drug testing programs. Employers appear to be concerned about marijuana
use—legal or not.
Perhaps even more eye-opening is what Colorado employers
have done since the state decriminalized recreational marijuana use. According to a survey by the Mountain States
Employers Council, one in five employers reported they implemented more stringent drug testing policies. Meanwhile
only 2 percent relaxed their testing for marijuana, while 71
percent reported that their policies
hadn’t changed.

Advocates for legal marijuana argue that it should betreated like alcohol, with employees facing no workplacesanctions, provided marijuana is consumed responsibly
off the job. So far, however, courts have generally ruledthat employers may fire workers for using marijuana,
even off-duty and if medically prescribed.
The following data provided by the Drug and Alcohol Testing Industry Association (DATIA) highlight why it believes
increased marijuana use is a concern for employers:
A minimum of 24-hour acute impairment is standard
after marijuana use, according to several studies.
One in 10 marijuana users will become dependent to thepoint of requiring treatment.
There is two to five times greater use of other drugs whenmarijuana is the onset drug.
In addition, according to the National Institute on Drug
Abuse, drug abusers are less productive, have increased absenteeism, are more likely to become sick or injured, and are
more likely to be a danger to themselves and their co-workers.
As a result, employing drug abusers can contribute to making
an organization a less attractive and less safe place to work.

Employer response to legalization
EmployeeScreenIQ recently conducted their annual background screening survey, and one of the questions asked ofthe more than 500 participants was how their organization
would be likely to react if recreational marijuana were legalized. Among their answers (participants were allowed tochoose more than one):

79“There seems to be a movement toward more testing,” Curtis Graves,staff attorney with the Employers
Council, told The Denver Post. “A lotof people are freaked out about theprospects of employees’ legal marijuana use. And given the 20 percent
increase in positive marijuana tests inthe state, perhaps with good reason.”

What the courts have to say
Advocates for legal marijuana argue that it should be treatedlike alcohol, with employees facing no workplace sanctions,provided marijuana is consumed responsibly off the job. So
far, however, courts have generally ruled that employers may
fire workers for using marijuana, even off-duty and if medically prescribed.
Colorado again provides noteworthy examples of this trend.
Colorado law prohibits an employer from terminating an employee “due to that employee’s engaging in any lawful activity
off the premises of the employer during nonworking hours.”
However, in Curry v. MillerCOORS, a Colorado District
Court ruled that the protected activity had to be lawful atboth the state and federal level. For the same reason, in Coatsv. Dish Network, the state’s courts approved the dismissal of a
Dish Network employee who admitted he used medical marijuana off the job but said he was never impaired at work.
Increasingly, workers terminated after using marijuana for
medical reasons have made discrimination claims in federal courts under the Americans with Disabilities Act. So
far, courts are again siding with employers. For example, in© 2015 CCH Incorporated. All rights reserved.

HR COMPLIANCE LIBRARY

2012, the U.S. Court of Appeals for the Sixth Circuit sided
with Wal-Mart (Cassius v. Wal-Mart Stores Inc), which had
fired a worker with cancer who had registered with the state
medical marijuana program.
Even if the employee alleges discrimination, as in the MillerCOORS case, antidiscrimination law does not protect anemployee from an employer’s standard policies against employee misconduct. As long as employers apply their drugfree policies in a neutral manner, courts have held that banning drug use on the job is not discriminatory.
In short, courts are consistently giving private employers theright to set their own drug policy. Employers with a clear,
unambiguous drug policy that is followed fairly and consistently, can terminate an employee as the result of a drug test
showing the presence of marijuana in the employee’s system
during working hours.

How should employers react?
With legalization increasing marijuana use, some employers—like those in Colorado—that want to preserve a drug-

SEPTEMBER 2, 2015 ISSUE NO. 774

80

free environment will simply choose to do more drug testing. However, unlike alcohol, marijuana has a long, residual
presence in a person’s system, so it may not make sense toterminate people who test positive—especially those withmarijuana prescriptions—as a matter of policy. But whatcertainly does make sense is to take the time to ensure thatthe drug testing policies protect the organization and suit its
particular needs.
Begin with the following:
1. Do review your drug-free workplace policy and substance abuse testing program with legal counsel.
2. Don’t stop enforcing the drug policy solely because ofstate marijuana laws.
3. Do apply the drug testing policies fairly and consistently.
4. Don’t terminate or disqualify someone without carefulconsideration and adherence to policies, particularly inlight of medicinal or “legal” recreational use.
5. Do consider the health and safety of all workers in theapplication of the drug screening policy. n
Source: EmployeeScreenIQ.

HR QUIZ

May an employer ask an employee whether diabetes is causing
her performance problems?
Issue: Several times a day for the past month, Claire,
Generally, an employer may ask disability-related quesQ
the receptionist, has missed numerous phone calls andtions or require an employee to have a medical examinahas not been at her desk to greet clients. Her supervisor, Patti,
tion when it knows about a particular employee's medioverhears Claire tell a coworker that she feels tired muchof the time, is always thirsty, and constantly has to go to
the bathroom. Patti wants to ask Claire if she has a medical condition, like diabetes, that is causing her performance
problems. Can she do so without violating the Americans
with Disabilities Act (ADA)?

A

Answer: The ADA strictly limits the circumstances
under which an employer may ask questions about
an employee's medical condition or require an employee
to have a medical examination. In this instance, Patti
may ask Claire whether she has diabetes or send her for a
medical examination because she has a reason to believethat diabetes may be affecting the receptionist's ability toperform one of her essential duties — sitting at the front
desk for long periods of time.

cal condition, has observed performance problems, andreasonably believes that the problems are related to a
medical condition. At other times, an employer may ask
for medical information when it has observed symptoms,
such as extreme fatigue or irritability, or has received reliable information from someone else (for example, a family member or coworker) indicating that the employee
may have a medical condition that is causing performance problems. Often, however, poor job performanceis unrelated to a medical condition and generally should
be handled in accordance with an employer's existing
policies concerning performance.
Source: EEOC Guidance: “Questions and Answers
about Diabetes in the Workplace and the ADA,”
reported in Accommodating Disabilities Business
Management Guide ¶140,325.

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HR COMPLIANCE LIBRARYSEPTEMBER 2, 2015 ISSUE NO. 774

81

HR NOTEBOOKUnemployment unchanged in July
Total nonfarm payroll employment increased by 215,000
in July, and the unemployment rate was unchanged at
5.3 percent, the U.S. Bureau of Labor Statistics (BLS)
reported August 7. The number of unemployed persons,
8.3 million, was also unchanged.
Job gains occurred in retail trade (+36,000), health care(+28,000), professional and technical services (+27,000),
and financial activities (+17,000). Job gains also occurredin manufacturing (+15,000), food services and drinking
places (+29,000), and transportation and warehousing(+14,000). Mining employment continued to trend downin July (-5,000). Employment in other major industries—
including construction, wholesale trade, information, andgovernment—showed little change over the month.

Hourly earnings increase 0.1 percent in July
Real average hourly earnings for all employees increased
by 0.1 percent from June to July, seasonally adjusted,

the BLS reported August 19. This result stems from a
0.2-percent increase in average hourly earnings being
partially offset by a 0.1-percent increase in the Consumer Price Index for All Urban Consumers (CPI-U).
Real average weekly earnings increased by 0.4 percent
over the month due to the increase in real average hourly
earnings combined with an increase of 0.3 percent in the
average workweek.

CPI for all items rises 0.1% in July
The Consumer Price Index for All Urban Consumers(CPI-U) increased 0.1 percent in July on a seasonally adjusted basis, the BLS reported July 19. The indexes forfood, energy, and all items less food and energy all roseslightly in July. The index for all items less food and energy also rose 0.1 percent in July. A 0.4-percent advancein the shelter index was the main contributor to the increase, though the indexes for medical care and apparelalso rose. In contrast, the index for airline fares fell sharply, and the indexes for used cars and trucks, household
furnishings and operations, and new vehicles all declined.

EEOC releases report on the state of the American workplace
The U.S. Equal Employment Opportunity Commission(EEOC), as part of the year-long celebration of its 50th
anniversary, recently released American Experiences versus
American Expectations. The report illustrates the significant
changes to the demographics of the workforce since EEOC
opened its doors in 1965 as well as the continuing challenges to equal opportunity in employment.
"Despite notable progress in diversity and inclusion in theworkplace over the past half century, this report highlights
continued job segregation by race and gender, with womenand people of color disproportionately occupying lower
paying positions," said EEOC Chair Jenny R. Yang.
Beginning in 1966, all employers with 100 or more employees (lower thresholds apply to federal contractors) have beenrequired by law to file the Employer Information Report
EEO-1 with the EEOC. In FY 2013, approximately 70,000
employers filed reports indicating the composition of theirworkforce by sex, race/ethnicity, and major job categories.
Observations from the American Experiences versus American
Expectations report include the following:

In 1966, African-Americans, Hispanics, and AsianAmericans each made up less than 1 percent of seniorlevel positions. Since then, the participation rates for all
three groups have increased by five to seven times.
The participation rate of women in the Professionals category has skyrocketed from roughly 14 percent in 1966
to more than 53 percent in 2013.
Women and minorities remain concentrated, or segregated,in lower paying positions. For example, in 2013: Hispanics
composed 20.5 percent of Service Workers and 29.2 percent
of Laborers, yet they were only 5.7 percent of Professionals and 7.4 percent of Officials and Managers; and AfricanAmericans composed 23.3 percent of Service Workers and18.7 percent of Laborers, yet they were only 7.6 percent ofProfessionals and 6.8 percent of Officials and Managers.
In conjunction with the report EEOC has produced a fact
sheet highlighting key data points on each demographic
group of workers covered in the report. These fact sheetswhich include EEO-1 data, EEOC charge and litigation information, and agency outreach activities-are available withthe report at www.eeoc.gov/eeoc/statistics/reports/ n.

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