Here are some recent court rulings and survey results that you should be aware of as they may impact your business:
CONFUSION: A recovering cocaine addict who was fired after completing an in patient treatment program is a "current" drug user and therefore ineligible for ADA protection, the U.S. Court of Appeals for the Fifth Circuit ruled. The fact that the employee was drug-free during his five-week treatment regimen does not, by itself, qualify the employee as a former drug user covered by the ADA, the court says. The decision is contrary to a Second Circuit finding that addiction should be judged at the moment of termination.
INVESTIGATION ROADBLOCK: Employers that hire outside investigators to probe allegations of sexual harassment, threats, fraud and theft could run afoul of the expanded Fair Credit Reporting Act according to a recent Federal Trade Commission opinion letter. The commission asserts that such outside investigators could be considered "consumer reporting agencies." If so, the employers that hire them would be subject to the act's notification requirements, which would mean employees under investigation would have to be informed and/or provided with a copy of the report the investigation generated. Deletion of sensitive information, such as witnesses' names, is not permitted under the FCRA.
COURT CREATES HAVOC: A section of an employer's handbook saying that employees would be laid off in reverse seniority is a contract and cannot be changed unilaterally by management, the Arizona Supreme Court ruled. The court determined that under Arizona contract law, the employer could not modify its layoff provision without employee assent and without providing some form of "consideration" for the change. In a crowning blow, the court said, "Continued employment alone is not sufficient consideration to support a modification to an implied-in-fact contract."
MORE CONFUSION: U.S. Court of Appeals for the Eighth Circuit reinstated an employee's hostile environment sexual harassment claim arising out of an alleged attempted rape by an executive. The U.S. Supreme Court had vacated the Eighth Circuit's initial dismissal, citing its 1998 rulings on employer vicarious liability. In sending the case back to district court, the Eighth Circuit said the standard outlined by the high court might not apply in cases where there is a "single severe act of sexual harassment."
BEWARE: A North Carolina jury awarded $7.9 million to the families of two men killed when a fired employee went on a shooting rampage that left workers dead. The plaintiffs argued that the company where the shooting took place was negligent in managing the ex-worker, who had a history of fighting.
QUALIFIED APPLICANTS PLEASE APPLY: The proportion of job applicants deemed to have inadequate math and reading skills almost doubled between 1996 (19 percent) and 1998 (36 percent), according to the latest American Management Association survey on employer testing. While such deficiencies in the past might have disqualified applicants from a job offer, current labor market conditions are spurring more employers to hire and train skill-deficient candidates.
MORE DISPUTES ABOUT DISPUTE RESOLUTION: A company policy that requires employees to arbitrate all employment-related disputes, including discrimination claims, as a condition of employment is "unconscionable" and unenforceable according to the California Court of Appeal for the Fourth District. Such a policy, the court said, leaves workers with no "meaningful" choice and "unreasonably" favors the employer. The ruling deepens a split among the state's appellate courts. Earlier this year, the Sixth District left in force an arbitration agreement presented to employees on a "take it or leave it" basis.
HARASSMENT CLAIMS GOING UP: Sexual harassment complaints are increasing, according to a recent survey by the Society for Human Resource Management. Despite employers' efforts to address the problem, the average number of complaints per organization rose from 0.69 in 1995 to 1.47 in 1997. Lack of effective communication and enforcement of policies may account for the rise in reported incidents in the workplace, the survey suggests.
FMLA BITES BACK: A manager who left his job shortly after he suffered a heart attack is due most of a $119,661 jury verdict for his employer's violation of the Family and Medical Leave Act, the Fifth Circuit Court of Appeals ruled. The employee alleged that, upon returning from open heart surgery, he was given a choice of a job with half the pay; three months' pay at his former salary level while he looked for new employment; or two months' severance. He quit and sued, claiming he was forced to leave so the company could avoid future medical claims.