Per Liar Liar, performing background checks on minors can be major issue

November 02, 2015 - by: Ed Carlstedt 0 COMMENTS
Ed Carlstedt

Because I’m a lawyer and because my friends know I love movies, people frequently ask me to identify my favorite lawyer-related movies. My personal favorites are My Cousin Vinny, A Few Good Men, and Liar Liar. To the extent you agree or have lawyer-related movies you like as well, feel free to weigh in. As luck would have it, this week’s employer blog lesson comes from the well-timed juxtaposition of a client inquiry and what has to be my hundredth viewing of Jim Carrey’s Liar LiarSign on the Line

Specifically, a client in the hospitality industry recently asked whether it had to obtain parental or legal guardian consent to conduct background checks and drug screens on its minor employees. Particularly in the summer months, many restaurants and hotels hire minors. Unfortunately, many employers mistakenly use the same hiring materials regardless whether the employee is a minor or has reached the age of majority. Thus, the employers ask their minor employees to sign the required consent forms. But do these minor employees have the legal capacity to execute these forms?

This is where Jim Carrey’s eccentric, ethically challenged character in Liar Liar can teach employers a lesson. As you may recall, Carrey represents a philandering wife in her divorce proceeding in which she seeks half of her soon-to-be ex-husband’s multi-milliondollar estate. Carrey’s client, however, signed a prenuptial agreement containing a fidelity clause. A fidelity clause essentially provides that if one spouse cheats on the other, the cheating spouse isn’t entitled to recover certain identified assets in the divorce proceedings.

As luck would have it, Carrey’s client had slept with at least seven other men and the husband had audio footage of the wife “making love” to the most recent paramour. Carrey, who early in the movie was not exactly morally constrained, was fully prepared to have his client and her paramour lie about their sexual relationship. But then, Hollywood magic intervenes. Carrey’s young son, who was tired of his father’s unfulfilled paternal promises, makes a birthday wish that for one day Carrey cannot lie. The wish comes true, coincidentally, on the very day of Carrey’s family law trial.

As a result of his son’s wish, not only can Carrey not lie, but he can’t allow his clients to provide testimony that he knows is a lie. Indeed, Carrey impeaches his own star witness on the stand, causing the paramour to admit to the “lovemaking” with Carrey’s client. The movie obviously contains a more colorful description of the relationship, but I like to keep things PG. Once the paramour admits to the relationship, all hope for his client’s case appears lost. But then, while reviewing his client’s birth certificate, Carrey has an epiphany.

From the birth certificate, Carrey realizes that his client lied about her age so that she could get married. That is, Carrey’s client claimed she was 18 at the time she married the husband, when in fact she was only 17. As the name implies, Carrey’s client signed the pre-nuptial before she got married. Thus, she was a minor at the time she signed. Therefore, the agreement was void and, as Carrey put it, “[t]he fact that my client has been ridden more than Seattle Slew is irrelevant.” Once the agreement was voided, his client received half of the marital estate. “He shoots, he scores.”

So where is the lesson for employers here? Just like Carrey’s client in Liar Liar, minor employees don’t have the legal capacity to consent to background checks and drug screens. Employers hiring minors should ensure that their new hire packets include appropriate parental or legal guardian consent forms and that the forms are signed and returned.  Without such consent, employers may unintentionally be breaking various state and federal laws applicable to these areas. So, as Jim Carrey tells his recidivist criminal client after he robs someone at knifepoint, “Stop breaking the law, [expletive].”

If you have questions about background checks, drug screenings, parental consent forms, or other employment related issues, contact EntertainHR contributing writer Ed Carlstedt or another attorney with FordHarrison LLP. Ed works in the firm’s Tampa, Florida, office and can be reached at ecarlstedt@fordharrison.com.

Alcoholism and how USC may have violated ADA by firing Steve Sarkisian

October 19, 2015 - by: David Kim 8 COMMENTS
David Kim

On October 12, 2015, Steve Sarkisian was fired as  head coach of the University of Southern California (USC) football team. While USC contends Sarkisian was fired for “cause,” there is no question that his alcohol-related behavior led to his termination. Whether the termination was or was not properly for “cause” is relevant, in part, because it would likely determine whether USC would have to pay the remaining three years of his five-year contract. Whether the termination was lawful under the Americans with Disabilities Act (ADA), or analogous state law statutes alcoholismprohibiting discrimination on the basis of disability, is another question. And due to the high public profiles of the institution and the individual involved, this may be a question that is never entirely answered.

Back in August, video emerged of a clearly intoxicated Sarkisian at a USC pep rally, slurring during his speech and using profanity. The coach publicly apologized, contending that his behavior was the result of mixing alcohol and certain undisclosed medication. While Sarkisian denied having a drinking problem, he contended he would go to “treatment” to seek help. It appears Sarkisian neither sought help nor ceased his alcohol consumption. Reports last week emerged from sources that the coach “showed up lit to meetings again” and was told to leave the premises on Sunday. That same day, it was announced by USC Athletic Director Pat Haden that Sarkisian was asked and had agreed to take an indefinite leave of absence for his condition. On the next day, he was officially fired.

Well, that leave of absence turned into a termination real quick, huh?

Since Sarkisian’s termination, further reports have leaked suggesting that this has been an ongoing issue with Sarkisian, not only at USC, but that there was evidence of alcohol-related abuse during his prior head-coaching stint at the University of Washington. Therefore, it’s possible that the coach has had a prolonged alcohol abuse problem and one that has been known by USC officials for some time.

Alcoholism is considered a disability under the federal ADA and analogous state disability laws. Therefore, employers cannot discriminate on the basis of someone’s alcohol-related disability and must engage in the interactive process and provide a reasonable accommodation if necessary. Obviously, employees cannot simply come to work drunk and avoid disciplinary action by claiming reliance upon alcohol. And employers are permitted to have policies expressly prohibiting alcohol in the workplace or else employees will face harsh disciplinary action up to and including termination.

In addition, an individual who suffers from alcohol dependency still must be able to perform the essential job functions, and those include but are not limited to adhering to the company’s attendance policy and work performance standards. The hardest part really comes down to what type of accommodation the employer can offer that is reasonable, which is based in great part on the situation at hand, particularly the employee’s position and applicable duties. One common form of accommodation with respect to alcohol dependency is an unpaid leave of absence while the employee seeks treatment or other counseling. Frankly, it would be a red flag if an employer that grants an individual a leave of absence (for any reason, let alone a disability) then decides to terminate that same individual shortly after the leave was given. But that’s exactly what USC did.

Therefore, it will be interesting to see what Sarkisian does going forward, either during or once he has completed his rehabilitation treatment. He could choose to fight and contend that his termination while on a leave of absence for a disability was unlawful. Of course, he would have to address every single detail regarding his alcoholism in a public lawsuit, potentially scare off colleges who may wish to hire him for a coaching job in the future, and risk the fact that a lawsuit could take years and he recovers nothing. He could simply move on with his life, which would be forfeiting potentially large sums of money either in the form of damages (or pursuant to what may be owed under him by contract), seek treatment, and hope that another coaching opportunity presents itself at some point. Of course, he also could reach a private settlement with USC as well. It’s a tough decision for Sarkisian, particularly because of his high-profile occupation, and I would surmise some sort of private agreement will be achieved to spare both parties further public embarrassment.

Most employees, however, don’t have the public concerns that someone in Sarkisian’s position has, and would likely file a lawsuit if terminated in the same manner as the coach. Therefore, employers should tread carefully with respect to issues related to alcohol dependency and understand that while inappropriate behavior or failure to perform the essential job functions isn’t excused by an employee’s alcoholism, the employer still must evaluate whether a reasonable accommodation is appropriate and can be provided.

 

Need to learn more about hot to implement a legally sound and enforceable workplace drug and alcohol policy? Drugs and alcohol are an ongoing and serious concern for safety managers and HR, as substance use and abuse can impair safe work performance and descrease productivity. Prescription pain killers present serious challenges, even when used according to a doctor’s direction.  And in places where marijuana use has been legalized, employers must figure out how to balance workplace safety against workers’ rights. Do your supervisors know how to evaluate employees who may be under the influence? Do your policies and programs take into account laws like the ADA and FMLA? Join us on November 9 for the 90-minute BLR webinar Drugs and Alcohol in the Workplace: Effective and Legal Ways to Reduce Workplace Safety Risks for an in-depth look at how to develop and implement a fair and effective program to reduce the impact and associated costs of prescription and illegal drugs and alcohol in the workplace. For more information or to sign up for the webinar, go to http://store.hrhero.com/drug-alcohol-110915.

Ode to Letterman: EntertainHR’s own Top 10

June 06, 2015 - by: David Kim 0 COMMENTS
David Kim

David Letterman, a late-night staple for 33 years, aired his final episode on May 20, 2015. Whether you preferred Johnny, Leno, Conan, Kimmel, or Fallon, no one can deny Letterman’s impact on pop culture, and the fact remains that he retires as the longest-serving late-night talk show host in American television history. While there were certainly some missteps along the way (the “Oprah…Uma” Academy Awards debacle undoubtedly qualifies), Letterman’s comedic and late-night chops cannot be denied. CBS Late night show entrance sign

As Letterman’s career winds down, our EntertainHR blog approaches just its one-year anniversary next month (after many years of chronicling the TV show The Office in Ford Harrison’s earlier blog “That’s What She Said”). Therefore, in homage to Letterman, and in the vein of shameless self-promotion, we contributors to EntertainHR have decided to regale our readers with a top 10 list.

Following are the top 10 EntertainHR posts of the past year in terms of viewership. If you haven’t had a chance to read them, just click away below.

Drumroll please….

10. “Pay the lady.” The glitz, the glamor, the Oscars! That, plus a public outcry for a very important issue, wage equality for women. Who said acceptance speeches are boring?

9. “We fixed the glitch.” Because never having seen the movie Office Space is downright un-American. And because not confronting your problem employees can lead to a Milton Waddams-type burning down the building and retiring to the islands with the company’s money. Feel free to check out EntertainHR’s companion piece “I believe you have my stapler,” written by yours truly. Although not in the top 10, I’m including it because frankly I’m writing this post and can do what I want.

8. “Marky Mark and the Convicted Bunch.” The use of an employee’s criminal history in employment decisions is a hot issue at the moment, and jamming out to Good Vibrations by Marky Mark and the Funky Bunch will never get old. So long as you’re bringing forth the rhythm and the rhyme.

7. “Seahawks’ Lynch follows NFL policy, adds to absurdity of Super Bowl media day.” After the year the NFL had, isn’t anything about the league and its bungling of its own policies or procedures a must read at this point?

6. “A word for the EEOC from Bob Kazamakis*.” Because employers love to read about a U.S. Supreme Court decision in which the Equal Employment Opportunity Commission (EEOC) loses. And because we’re all wondering the same thing, who the heck is Bob Kazamakis?

5. “Blacklisting.” It’s interesting to create (nondiscriminatory) typecast descriptions for certain categories of employees. It’s more revealing (or disturbing) that these generalities can oftentimes turn out to be true. Plus, I hear a lot of people watch The Blacklist.

4. “BFOQ FTW.” OMG. This post on BFOQ had me LMAO and ROFL. Employers, CYA and make sure you have valid defenses, and then IMHO you will have NP. TTYL.

3. “Workaholics: Drug testing.” Take a funny show that revolves around three mischievous college dropouts working at a telemarketing company, sprinkle in illicit drug and alcohol abuse in the workplace, and bam–you’ve got #3 with a bullet.

2. “I’m Ron ******* Swanson.” Nothing says read me more than “*******” in the title. Even if I wasn’t a huge Parks and Recreation, and Ron Swanson fan, I’d be intrigued. So should you.

1. “It’s never easy, but Oprah delivers layoff news in person.” How to conduct a reduction in force to ensure compliance with applicable law is important to every employer. But let’s be honest. Oprah + massive layoffs = surefire number 1. To quote Ron Burgundy, “it’s science.”

Workaholics: Drug testing

April 06, 2015 - by: Kristin Starnes Gray 4 COMMENTS
Kristin Starnes Gray

The Comedy Central show Workaholics is currently in its fifth season of depicting a fresh (and hilarious) human resources nightmare week after week. The show is about three recent college dropouts (Blake, Adam, and Anders) who also happen to be roommates and coworkers at a fictional telemarketing company, TelAmeriCorp. To give you an idea of just how mischievous these three can be, their drug dealer/turtle feeder is also a regular fixture on the show. iStock_000003274349_Large

Fittingly, the pilot episode deals with the trio attempting to pass a company-wide drug test after a day of partying. Their shenanigans include, for example, bribing a middle school boy with fireworks and ninja stars in exchange for clean urine. When this plan goes awry (I won’t give away the messy details), the group decides to accept their  fate and take the drug test. Blake, however, finds inspiration from the film Die Hard and decides to contaminate ALL the employees’ samples before escaping just in the nick of time. Shocked to find that all TelAmeriCorp employees failed the drug test, Alice Murphy (senior sales associate and boss to our oddly endearing–though often disgusting and misguided–trio) relieves the drug tester of his duties. Blake, Adam, and Anders celebrate only to learn that the company has planned a hair follicle test.

Hopefully, you don’t know anyone who has taken a page from the Workaholics playbook for handling a company drug test. As employers are well aware, illicit drug and alcohol abuse can be costly in the workplace, and drug-free workplace programs can be powerful tools for spreading prevention messages and intervening early with those who have begun to use drugs. In my Christmas-themed Elf post, I discussed some general recommendations for such programs. In addition, there are many important legal considerations for employers, including the following examples.

  • Defamation. Revealing drug testing results, or simply revealing the basis for a suspicion of drug use, could be grounds for a defamation claim. Policies should minimize this risk by strictly limiting access to drug test information on a “need to know” basis, limiting statements to objective fact, obtaining a release, requiring follow-up confirmation testing, safeguarding the specimen (especially from Die Hard fans like Blake), using a reliable lab, and using split samples so employees can have a sample tested at their own expense.
  • Disability Discrimination. Although the Americans with Disabilities Act (ADA) does not protect current illegal drug users, both alcoholism and drug addiction are protected disabilities.  Employee misconduct caused by addiction is not protected by the ADA, however.
  • Adverse Impact.  If an employer’s policy or practice, such as disciplining or terminating all employees testing positive for drugs, adversely affects the employment opportunities of a class of employees protected by statute (such as minorities), the policy or practice may be challenged as discriminatory.
  • Employee Privacy.  There is no federally created right of privacy for private-sector employees. The federal prohibitions against illegal searches and seizures apply only to governmental action. Many state constitutions or statutes, however, contain a right of privacy that may limit certain drug testing methods or the circumstances under which an employee may be subject to drug testing. Employers should check the laws of the states in which they have employees before implementing a drug testing policy.

Unfortunately for our Workaholics, many state laws make it unlawful for any person to attempt to defraud any lawfully administered test designed to detect the presence of chemical substances or controlled substances. For the time being, our trio has escaped to bring us more cringe-worthy office moments, laughs, and potential blog material. So tell me your favorite episode and why it should appear in an upcoming blog post.