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Today’s Labor Updates, March 8, 2018

USW Local 5114 Rejects Arbitration Proposed to End Hecla Strike

PITTSBURGH, March 7, 2018 /PRNewswire-USNewswire/ — The United Steelworkers (USW) today said that the members of Local 5114 in Mullan, Idaho, have overwhelmingly rejected a proposal that would end a year-long strike at Hecla Mining Company’s (NYSE: HL) Lucky Friday mine by submitting the outstanding issues to binding interest arbitration.

In a secret ballot election, about 250 USW members, who began their strike against the company’s unfair labor practices almost exactly one year ago, on March 13, 2017, voted to continue the labor dispute rather than risk allowing a panel of arbitrators to impose a contract that would give management unprecedented, unchecked control over who works and the schedule they work, along with who advances through Hecla’s job progression system and at what pace.

“Clearly, the members of Local 5114 remain united in solidarity and their determination to fight for the fair contract they have earned and deserve,” said USW District 12 Director Robert LaVenture.

“On their behalf, and on behalf of their families and the community which has steadfastly supported them, I strongly encourage Hecla management to return to the bargaining table to negotiate in good faith and resolve the remaining issues,” he said.

LaVenture said that no meetings with Hecla management are currently scheduled, but members of Local 5114 will sponsor a rally at Mullan Pavilion and march to the Lucky Friday picket line on Saturday, March 17, to commemorate one year of solidarity in their fight for a fair contract.

The USW represents 850,000 workers in North America employed in many industries that include metals, rubber, chemicals, paper, oil refining and the service and public sectors. For more information, visit

SOURCE United Steelworkers (USW)

Does Labor Law Protect Employees Engaged In Harassment?

Article By: David J. Pryzbylski

Employers across the U.S. have been moving swiftly to prevent and eradicate harassment in the workplace since the advent of the #metoo movement last year. While in many instances terminating employees engaged in “harassing” behavior can be an easy decision, the National Labor Relations Board (NLRB) has, in the past, forced employers to reinstate employees discharged for misconduct that potentially constituted unlawful harassment under federal employment laws, such as Title VII of the Civil Rights Act. This raises the question: Does labor law protect employees engaged in harassment?

According to a new report by Bloomberg BNA, we may have a clearer answer to this question. NLRB General Counsel Peter Robb reportedly is meeting with leaders at the Equal Employment Opportunity Commission (EEOC) “to try to thread a needle between offensive speech that’s protected by federal labor law and comments that may be considered harassment under a separate workplace discrimination law.”

The potential inconsistencies between the NLRB’s and EEOC’s positions on this issue have arisen in various instances over time, and they most recently were highlighted in a case last year when a federal court upheld an NLRB order that required a company to reinstate a worker who directed racial slurs at replacement workers during a strike. The board’s decision, in part, focused on the fact that the harassing conduct was related to “protected activity” (a strike) under the National Labor Relations Act (NLRA). That decision caused much consternation for employers around the country. Needless to say, it’s difficult to reconcile decisions like that with guidance from the EEOC that employers should generally prohibit the use of racial slurs in the workplace given they can constitute unlawful harassment and/or discrimination under Title VII.

Accordingly, joint-guidance from both agencies more clearly identifying if/when harassing misconduct by an employee may be protected by labor law cannot come soon enough. Even without formal input from the EEOC and NLRB, there have been a couple positive developments for employers on this front from the labor board recently that may signal the agency will be taking a different view on issues like this. In December of last year, the board issued a rulinggenerally stating it will be upholding workplace “civility” rules despite the fact it had been striking down many such policies in recent years; and then in February of this year, the NLRB upheld the discharge of an employee who engaged in significant misconduct despite the fact he was engaged in “protected activity” at the time. While employers still face some uncertainty in this context in the absence of formal joint-guidance, these other recent developments at the NLRB are worth noting as companies navigate complex situations where both misconduct – including potential harassment – and potentially protected NLRA activity are involved.

The Coming Decline of the Employment Drug Test

Struggling to hire, some companies are relaxing corporate drug policies.

By Rebecca Greenfield .and Jennifer Kaplan

‎March‎ ‎5‎, ‎2018‎ ‎3‎:‎00‎ ‎AM‎ ‎CST

Employers are struggling to hire workers in the tightening U.S. job market. Marijuana is now legal in nine states and Washington, D.C., meaning more than one in five American adults can eat, drink, smoke or vape as they please. The result is the slow decline of pre-employment drug tests, which for decades had been a requirement for new recruits in industries ranging from manufacturing to finance.

As of the beginning of 2018, Excellence Health Inc., a Las Vegas-based health care company with around 6,000 employees, no longer drug tests people coming to work for the pharmaceutical side of the business. The company stopped testing for marijuana two years ago. “We don’t care what people do in their free time,” said Liam Meyer, a company spokesperson. “We want to help these people, instead of saying: ‘Hey, you can’t work for us because you used a substance,’” he added. The company also added a hotline for any workers who might be struggling with drug use.

Last month, AutoNation Inc., the largest U.S. auto dealer, announced it would no longer refuse job applicants who tested positive for weed. The Denver Post, owned by Digital First Media, ended pre-employment drug testing for all non-safety sensitive positions in September 2016.

So far, companies in states that have legalized either recreational or medicinal marijuana are leading the way on dropping drug tests. A survey last year by the Mountain States Employers Council of 609 Colorado employers found that the share of companies testing for marijuana use fell to 66 percent, down from 77 percent the year before.

Drug testing restricts the job pool, and in the current tight labor market, that’s having an impact on productivity and growth. In surveys done by the Federal Reserve last year, employers cited an inability by applicants to pass drug tests among reasons for difficulties in hiring. Failed tests reached an all-time high in 2017, according to data from Quest Diagnostics Inc. That’s likely to get worse as more people partake in state-legalized cannabis.

“The benefits of at least reconsidering the drug policy on behalf of an employer would be pretty high,” said Jeremy Kidd, a professor at Mercer Law School, who wrote a paper on the economics of workplace drug testing. “A blanket prohibition can’t possibly be the most economically efficient policy.”

Companies are having a hard enough time hiring, with unemployment hovering around 4 percent. “Employers are really strapped and saying ‘We’re going to forgive certain things,’” said James Reidy, a lawyer that works with employers on their human resources policies. Reidy knows of a half-dozen other large employers that have quietly changed their policies in recent years. Not all companies want to advertise the change, fearing it might imply they are soft on drugs. (Even former FBI director James Comey in 2014 half-joked about the need for the bureau to re-evaluate its drug-testing policy to attract the best candidates.)

Why the change? Pre-employment testing is no longer worth the expense in a society increasingly accepting of drug use. A Gallup poll in October found that 64 percent of Americans favor legalization. That’s the most since the company first started asking the question in 1969, when only 12 percent supported changing the plant’s status. Drug tests costs from $30 to $50 a pop, but the potential costs to an employer are far greater than the actual test.

In addition to helping ease the labor market, eliminating drug testing could have even broader benefits for the economy, said Kidd. Employers could hire the best, theoretically most-productive workers, he said, instead of rejecting people based on their recreational habits. Companies have said they lose out to foreign competitors because they can’t find people who can pass drugs tests, a particularly acute problem in the areas most affected by the opioid crisis.

Some jobs, such as those involving the use of heavy machinery, will always require drug tests. Excellence Health still drug-tests any employee working on a government contract, even in states where weed is legal. Companies are also reserving the right to test after an accident or if an employee comes to work notably impaired.

Not all companies are ready to change course. Restaurant Brands International Inc., which owns Burger King, hasn’t altered its corporate marijuana policy, said Chief Executive Officer Daniel Schwartz. Ford Motor Co. still treats pot as an illegal substance, according to a company spokeswoman.

Weed-averse employers have a notable ally: Attorney General Jeff Sessions. A longtime opponent of legalization, Sessions rescinded in January the Obama-era policies that enabled state-legalized cannabis industries to flourish. The uncertainty caused by the Justice Department’s actions may discourage companies from making changes.

Employers can also get discounts on workers’ compensation insurance for maintaining a “drug-free workplace” by, in part, drug-testing workers. But the types of workplaces forgoing pre-employment tests already enjoy relatively small savings. A job in an office setting, for example, won’t have very many workers’ compensation claims, compared to a factory. The money saved by meeting the qualifications for a drug-free zone isn’t worth it.

“We assume that a certain level of employees are going to be partaking on the weekends,” said Reidy, the employment lawyer. “We don’t care. We’re going to exclude a whole group of people, and we desperately need workers.”

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