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Labor Relations News Update September 8, 2014

Today’s Labor Updates:

Legal Use of Marijuana Clashes With Job Rules

The new union-organizing tool … embarrassment


The new union-organizing tool … embarrassment

Howard A. Mavity

September 1 2014

Unions and other third parties have never before so heavily used public embarrassment as a means of organizing employees. The key to union organizing is to find a disgruntled employee who will serve as a leader and capitalize on existing workplace problems. These problems are typically compounded by communication breakdowns and ineffective supervisors. Surveys show that the most divisive workplace issues are a sense of unfairness, discrimination, an unsafe workplace, and a sense that the employer does not care about employees.

But increasingly, unions do not wait for these issues to develop. They may create their own “issues.” This strategy partially explains the increase in wage-hour and related class actions, immigration and national origin complaints, and OSHA safety-and-whistleblower investigations.

Who Needs An Election … Let’s Just Pressure The Company

The need to create issues does not alone explain the increase in union efforts to publicly embarrass employers, including by making claims such as “environmental racism,” need for “a living wage,” “subcontractor safety,” and mistreatment of overseas workers. Unions are using public embarrassment and related legal claims in an effort to force an employer to “voluntarily recognize” a union without the necessity of an election.

Unions have not yet fully obtained their political Holy Grail of card check recognition, and they do not want the typical 42-day campaign period which allows the employer to share its side of the story. Thus, some unions would prefer to make life so miserable for employers that they simply accept the union’s claim that the union represents the majority of employees. And if not, since the union is not seeking an election, the campaign may drag on for years.

UNITE-HERE’s attacks on the Hyatt Corporation is an excellent example. The union created a coalition of third-party groups and filed numerous legal claims, publicizing the company’s supposed faults, which obviously discouraged guests and groups from using the properties. The union supported studies which purported to show that housekeeping employees suffer grievous ergonomic injuries because they were forced to clean too many rooms.

The union emphasized that many of the housekeepers were minorities, then orchestrated the filing of dozens of highly publicized OSHA ergonomic complaints throughout the country. The head of OSHA even wrote a public letter to the company criticizing its practices. Trucking and logistics employers have similarly been barraged by safety claims.

If We Embarrass The Customers, Maybe The Company Will Give In

Some unions have attacked the customers of the companies that the union has been unable to organize. In one case, handbillers followed bakery delivery trucks to stores and claimed that the bakery’s products violated health standards.

An even more despicable approach involves attacking customers who purchase food, wine, spirits, and beer from a distributor. One union researched the Health Department records of entire restaurant chains and then distributed handbills vaguely claiming that the restaurants had violated health codes. Any restaurant concept with hundreds of locations has probably received an unfavorable Health Department report at some time or other. Would your customers become upset if handbillers distributed leaflets showing rats and cockroaches crawling out of the restaurant’s food because the union had a dispute with you?

Preventing The Problem

To avoid, or at least help minimize, these types of attacks, take these steps:

  1. Regularly conduct surveys of employees and management, and compare the employees’ perceptions with those of the managers? You will typically find that your perception of workplace satisfaction and issues differs markedly from the employees.
  2. Make sure your supervisors are not “accidental supervisors” who were promoted because of their skills and who never received meaningful training in managing people.
  3. Conduct state and site-by-site audits to determine unique vulnerabilities. As an example, California mandates certain breaks and lunch periods, which generate hundreds of class actions. California also allows third parties more access to company property than do other states.
  4. Learn about the U.S. Labor Department (DOL) emphasis programs on contractors, temporary, and leased employees.
  5. Be aware that the DOL and other governmental entities are trying to hold both the company and its logistics partners liable for violation of immigration, wage-hour, or OSHA requirements.
  6. Review your policies on no solicitation/no distribution, electronic communications, corporate ethics and civility, confidential information, property control, and similar areas. If you have not done so in the last six months, it’s likely that the NLRB will conclude that at least some of your policies violate the law.
  7. Train sales and customer-service personnel to be alert to third-party attacks on your customers.
  8. Have a media plan and public-relations personnel available to assist you with attacks designed to harm the Company brand. Be prepared to calm angry customers and respond to harassment at all your sites.
  9. Make sure everyone, including valet, front desk, and receiving personnel know what to do if they encounter pickets or handbillers.
  10. Be aware of OSHA’s focus on routine items: blocked exits, electric cabinets, fire extinguishers, and routine electrical violations within your industry, which can be used to generate costly “repeat” citations.

The decades-long decline in union membership does not mean they have gone away. Far from it. They’re still around, still active, still craving new members, and constantly thinking up new ways to organize your properties.


Legal Use of Marijuana Clashes With Job Rules


DENVER — Brandon Coats knew he was going to fail his drug test. Paralyzed in a car crash when he was 16, he had been using medical marijuana since 2009 to relieve the painful spasms that jolted his body. But he smoked mostly at night, and said marijuana had never hurt his performance answering customer calls for a Colorado satellite-television provider.

So when his employer, Dish Network, asked Mr. Coats to take a random drug screen, he was not surprised when the test came back positive for marijuana. He told his bosses why, but when he got to work the following week, he said, “my card wouldn’t open up the door.” He was fired for violating the company’s drug-free workplace rules, despite having a medical marijuana card.

“There are a lot of people out there who need jobs, can do a good job, but in order for them to live their lives, they have to have this,” said Mr. Coats, who is 35. “A person can drink all night long, be totally hung over the next day and go to work and there’s no problem with it.”

But when it comes to marijuana, Mr. Coats and other users are discovering that marijuana’s recent strides toward the legal and cultural mainstream are running aground at the office. Even as 23 states allow medical or recreational marijuana, employment experts say that most businesses are keeping their drug-free policies. The result is a clash between a culture that increasingly accepts marijuana and companies that will fire employees who use it.

Even in Colorado and Washington, the country’s most marijuana-friendly states, a glance at online classified ads lays out an unwelcome landscape for marijuana smokers. “Please do not apply if you are NOT drug free or carry a medical marijuana card,” warns one job listing for a mechanic in Denver. A Chevrolet dealership in the suburb of Aurora tells applicants, “We do screen for medical or recreational marijuana.” In Seattle, a recycling company looking for a welder cautions that they are a “zero-tolerance company including marijuana!!”

Employers and business groups say the screenings identify drug-abusing workers, create a safer workplace, lower their insurance costs and, in some cases, are required by law. But marijuana advocates say the prohibitions amount to discrimination, either against people using marijuana to treat a medical condition or against people who smoke it because they simply have the legal right to do so, off the clock and away from the office.

“It wasn’t like I was getting high on the job,” Mr. Coats said. “I would smoke right before I go to bed, and that little bit would help me get through my days.”

On Sept. 30, he will take that argument before the Colorado Supreme Court in alawsuit challenging his 2010 firing. For years, courts in Colorado and across the country have ruled against marijuana users, saying that companies have the right to create their own drug policies. But legal experts say that if Mr. Coats prevails — he lost 2-1 in an appellate ruling — his case could transform how businesses must treat marijuana users.

Mr. Coats’s lawyer, Michael Evans, argues that Mr. Coats’s use of medical marijuana should fall under a state law that prohibits companies from firing workers for legal, off-duty activities that might rankle an employer. Dish Network argues that smoking marijuana can hardly be considered legal because it breaks federal law.

If Dish loses the case, the company wrote in a brief to the court, “Dish (and every other Colorado employer) can no longer maintain a drug-free policy” and companies across the state could risk losing federal contracts because they no longer complied with federal drug-free workplace laws.

After Colorado voted in 2012 to allow adults to buy, sell and grow their own recreational marijuana, scarcely any businesses relaxed their own rules, according to a survey by the Mountain States Employers Council, which represents 3,500 companies. Seventy-one percent left their drug-testing policies in place, and 21 percent actually imposed stricter rules.

“People were scared they were going to have a stoned work force,” said Curtis Graves, a staff lawyer for the group.

A survey by Quest Diagnostics, which conducts millions of drug tests across the country, found that positive results for marijuana rose in both Colorado and Washington in the year after legalization measures passed. In Colorado, the number of urine samples testing positive for marijuana rose to 2.3 percent in 2013 from 1.92 percent in 2012. In Washington, the rates rose to 2.38 percent from 1.94.

A positive test result can derail a career, say people who have been fired for marijuana use. In New Mexico, a physician assistant named Donna Smith who had used medical marijuana to treat symptoms of post-traumatic stress disorderlost her health care job in February after failing a drug test.

The health care provider where she had been working, Presbyterian Health Services, said Ms. Smith had worked for an outside staffing agency and had a temporary assignment with Presbyterian. One condition of that work was a drug screen. “Presbyterian is committed to patient safety and we believe that a drug-free workplace is a key component,” Presbyterian said in a statement.

Ms. Smith, who is suing Presbyterian, said she had been able to find only one sporadic job since then, and has cashed out an I.R.A. and spent her savings. “I can’t find any work,” she said.

Recently a handful of businesses in Colorado cautiously opened up to marijuana, said Mr. Graves of the Mountain States Employers Council. They decided their fears were overblown, and have asked the group to help them revise their drug-testing policies to remove marijuana from the mix.

In Washington State, the Titus-Will network of car dealerships and service centers now tells job applicants they will have to pass a “pre-employment profile test, background check and drug screen (excluding marijuana).” In Colorado, a handful of technology and marketing firms that do not test for drugs have told their employees: Do what you want off the clock, but come to work sober and alert.

Even the marijuana industry has grappled with whether to drug-test its employees. Outlawing marijuana use would be the height of hypocrisy. But in a closely scrutinized industry that deals with huge amounts of cash, potent doses of cannabis oil and marijuana-laced foods, businesses say their workers cannot be stoned at work.

At Open Vape, which sells marijuana vaporizers, employees take a computer test to determine their baseline cognitive skills. If a worker comes back from a break red-eyed and acting hazy, the company has them take the test, to see if anything is amiss.

“Just as we wouldn’t want folks going out and having a two- to three-martini lunch, we shouldn’t have folks going out and smoking a joint during lunch,” said David Kochman, the company’s general counsel.

But the message has not gotten through to everyone. Todd Mitchem, who runs a marijuana consulting business, said he recently got a phone call from an man interested in attending a marijuana job fair called CannaSearch in Denver later this month. But the applicant had one question: Would there be a room where people could smoke pot?

“The answer is no,” Mr. Mitchem said. “You can’t do that at the job fair.”

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