Most drug and alcohol abusers seek work—and some may be filling out applications in your lobby right now. What are the legal, workable, and effective ways to keep them out?

As we reported in yesterday's CED, most abusers of drugs and alcohol are in the workplace, but they aren't doing you any favors by being there. Studies show greater absenteeism, poorer health, and probably poor effort and output.

Well, it gets worse. According to the federal Occupational Safety and Health Administration (OSHA), between 10 percent and 20 percent of workers who die on the job test positive for alcohol or other drugs. In fact, industries with the highest rates of drug use also are those at highest risk for occupational injuries, such as construction, mining, manufacturing, and wholesale.

Although OSHA does not require drug-free workplace programs, one look at the statistics shows that they are a sensible—many would say necessary—step for any business to take. (Laws do require federal contractors to have drug-free workplace programs, and there are also requirements for companies in the transportation industry.)

Set up a drug testing program that is legal, workable, and effective. Attend a special CER webinar on May 30 to find out how. Can’t attend? Pre-order the CD. Read more.

The data show that there’s real benefit in substance abuse testing programs, especially in conjunction with company-provided employee assistance programs. Together, they reduce the risk of substance-related problems at work—as well as reduce the ever-present risk of lawsuits relating to sticky ADA/FEHA, FMLA/CFRA, and workers' compensation issues. But they must be implemented properly.

Join us on May 30 for a 90-minute webinar when our expert—an experienced California employment law attorney—will discuss how to craft an effective substance abuse policy and a testing program that is simple, accurate, and legal.

You’ll learn:

• The various California and federal laws you must consider when developing a drug and alcohol testing program
• How to assess your existing program to determine—and fix—potential gaps
• Best practices for on-the-job drug and alcohol testing
• What should you include in your substance abuse prevention policy
• How to make sure that employee privacy rights are properly addressed
• The pros and cons of a "zero-tolerance" policy
• Testing considerations—pre-employment, routine, random, and following an accident
• The legal strategies and remedies you should you consider if you're threatened with a lawsuit

We strongly recommend that you attend this valuable session, or if May 30 is not convenient, that you pre-order the CD of the session. Learn more.

Download your free copy of Questions To Ask In an Interview: Interview Questions For Employers today!

A recent study shows that most illicit drug users and heavy alcohol users are employed. That means they’re possibly working for you. If you are not testing, you're likely an "employer of choice" for all the wrong reasons.

Ah, the joys of drug testing. Nothing quite like trying to ferret out users of the Whizzinator (the popular drug-test-defeating device that delivers heated synthetic urine). It's no surprise that many HR managers would rather not deal with drug and alcohol issues. After all, you've got productivity issues to deal with, right?

But think about this: Maybe drugs and alcohol are your productivity issue.

According to a study completed by the U.S. Substance Abuse and Mental Health Services Administration (SAMSHA), drug and alcohol users really drag a business down.

"Employees who use drugs miss work more often, are less healthy, and are more prone to harming themselves and others in the workplace," the study reports. Drug-using employees are also more likely to change jobs often … not a problem, unless you’re their next employer in line.

Some key facts:

• Nearly twice as many illicit drug users skip 1 or more days of work each month compared with workers who do not abuse drugs.
• Drug users are also far more likely to report missing 2 or more workdays in the past month due to illness or injury, compared with workers who do not abuse drugs.

Also, although the study didn’t measure it, it’s not much of a stretch to guess that the drug users' work product is probably less than stellar even when they do show up.

Set up a drug testing program that is legal, workable, and effective. Attend a special CER webinar on May 30 to find out how. Can’t attend? Pre-order the CD. Read more.

You say you like the company of abusers? Well, there’s a surefire way to attract them: Don’t test! The study reports that current drug users were far more likely to work for employers that did not conduct drug or alcohol testing programs than those that do.

Only about 30 percent of the respondents reported working for employers that conduct random drug tests. Consequently, SAMSHA encourages all employers to adopt drug testing programs.

But that's not as easy as it sounds. Who will you test? Under which circumstances? Random? On suspicion? Which drugs are illegal? Who does the testing? What kind of test? What action will you take if someone tests positive? Re-test? Terminate? Refer to your EAP?

Done wrong, workplace drug and alcohol testing can generate more problems than it solves. Learn to do it right at CER’s May 30 webinar. Or pre-order the CD if you can’t attend. Either way, your satisfaction is assured. Click for info.

The bottom line is that drug testing is daunting. Most employers need professional help to get started. We've got it with an all-new webinar that we'll brief you on in tomorrow's CED.

Click here for info on the upcoming webinar.

Download your free copy of Questions To Ask In an Interview: Interview Questions For Employers today!

Does your company use a PTO policy or a vacation policy? In California, it matters more than it might seem because of the way the law treats vacation days as accrued wages. So be careful if you’re switching to a PTO policy—be sure you understand how the law will treat the accrued days.

The difference between vacation time and PTO

How is vacation different from PTO in California? Understanding this difference can be the key to staying out of legal trouble when administering your PTO plan. Let’s start with vacation time:

"Vacation is a term of art in California. When it’s used, that word means a very, very specific thing. It doesn’t mean that you’re traveling in the Bahamas. It doesn’t [even] mean that you’re on vacation in the traditional sense that you’re gone . . . The only point of vacation is that it’s paid time off that can be taken without condition." Dan Chammas explained in a recent CER webinar. Without condition means that it can be taken for any reason or no reason. Accrued vacation time is also the equivalent of accrued wages owed under California law.

Vacation also typically means paid time off that the employee can take at his or her discretion. This does not mean that employees can take vacation whenever they want, however. Employers can insist that employees give reasonable notice of vacation and that the vacation fits in with the schedule. But it does mean that once the vacation time is accrued, no further conditions must be met for it to be taken.

PTO, on the other hand, may encompass more than just vacation days. Chammas confirmed: "PTO is broader than vacation. PTO is any time an employee is being paid while away from work and not working. So, basically, it’s any paid leave."

Another way to think of it is that vacation is PTO, but PTO may not necessarily be vacation. In fact, vacation is a subset or an example of PTO. Here are some examples of non-vacation PTO: pregnancy leave, disability leave, jury duty, holiday pay, or sick leave.

Should you have a PTO policy?

An employer structuring a comprehensive leave policy has three types of leave to consider:

• PTO without conditions. If the leave is without condition, then it must be treated as vacation time – regardless of what it is actually used for – and all laws that relate to vacation time will apply.
• PTO with conditions (such as separate allotments for jury duty, sick leave, pregnancy disability leave, etc.). If the leave is with condition, then none of the "vacation" rules apply and it does not need to be paid out upon termination.
• Unpaid leave. If all leaves not covered by law are unpaid, then vacation laws are less of an issue—but employee retention could be a significant issue.

The employer can also determine which employee classifications are entitled to vacation/PTO. For example, the employer could differentiate PTO policies for full-time employees, part-time employees, and temporary employees.

In general, employers typically structure their leave policy as either:

1. A vacation bank, plus separate banks for other conditional leaves of absence.
2. One large PTO bank that can all be used without condition.

The first option may be the smarter administrative PTO policy because only the vacation bank has to be paid out upon termination. There’s less financial risk for the company. In this case, each of the other PTO banks that can only be used in specific circumstances (sickness, jury duty, pregnancy, etc.) need not be paid out upon termination. While this is better financially if the employee is terminated, it requires extreme diligence in recordkeeping. Another downside is that employees tend to like it less and will see it as a benefit loss compared to a PTO bank that is unconditional.

The above information is excerpted from the webinar "Paid Time Off in California: Strategies for Effectively and Legally Managing Your Program." To register for a future webinar, visit CER webinars.

Daniel B. Chammas, Esq., is a partner in the labor and employment practice group in Venable’s Los Angeles office. He has extensive experience defending employers in wage and hour class actions and other employment disputes, from actions for unpaid wages and sexual harassment claims to wrongful termination litigation and racial discrimination complaints.

Yesterday’s CED covered the first four tentacles of the Social Media Octopus. Today, four more tentacles—plus an invitation to the only California HR conference you need to attend this year.

The eight tentacles come from a recent BLR/HRHero-sponsored webinar featuring Patricia Trainor, J.D., and Stephen Bruce, Ph.D. Attorney Trainor is BLR’s senior managing editor, HR; Bruce is editor of the HR Daily Advisor. (BLR is CER’s parent company.)

[Go here for tentacles 1 to 4.]


Tentacle 5—Inappropriate/ Negative Actions Toward the Employer

Release of “trade secrets” and other proprietary data is a major worry for many employers. Remember, you have to treat these data as secret yourself. Some courts have determined that information that is available to the public through Internet searches and other means isn’t protected. 

Also, you may want to revise preemployment agreements regarding trade secrets and proprietary information such as customer lists.

Put in your policy, and have employees sign, an agreement concerning company equipment, company accounts, and company information.

What about badmouthing the company or the boss? This is a very frustrating situation because there are two legal issues that employers face when they try to restrict employees who rave and rant online: 

First, there are state legal off-duty activity laws. Although these laws were generally passed to protect smokers, many of them are broadly worded and social media activity could be protected.

Along with this come NLRB issues, that is, that many discussions online are protected activity, particularly if they fall under the guise of talking about terms and conditions of employment.

Tentacle #6—NLRB Issues

After lots of guidance, the NLRB issued its first decision on a social media policy and not surprisingly found the policy infringed on NLRA Section 7 rights.  In the case, the company’s policy prohibited statements on social media that “damage the Company, defame an individual, or damage any person’s reputation.” At a minimum, your social media policies should state that nothing in the policy is intended to restrict employees’ rights under the NLRA.

Social Media for California Employers: How to Reap the Benefits and Avoid the Risks—exclusively at this fall’s California Employment Law Update conference. Learn more.

Tentacle #7—Privacy Issues

There is little case law addressing the monitoring by employers of employees' social networking posts. However, the few cases in this area suggest that courts will be reluctant to uphold an invasion of privacy claim (whether based on the federal Constitution or state common law) when an employee voluntarily posts information on a public site.

Again, there is the issue of off-duty activity laws, as well as not requiring passwords and not trying to falsely enter a website.

Tentacle #8—Ownership Issues

Finally, there’s a very interesting issue now around who owns social media data. For example, say an employee has all your customer contacts on his or her LinkedIn page. When the employee leaves your employ, can he or she take that contact information? Can you prevent it?

The social media arena is constantly changing, the law is slow to catch up, and there are many grey areas. Having a policy, signing agreements, and training users will help to minimize your exposure.

Social media and all eight of its tentacles—just one more daily challenge. In HR, if it’s not one thing, it’s another. But we’ve got you covered with the in-depth conference exclusively for California employers.

Don’t Miss the 8th Annual California Employment Law Update Conference—Now Being Offered in Two Convenient Locations!

San Francisco: Oct. 9-11
Anaheim: Oct. 23-25

Our intensive program delivers rock-solid, bottom-line value with practical guidance for overcoming the latest HR challenges in California.

Join us this fall, and learn the latest on…

LEGAL COMPLIANCE

The state Fair Employment and Housing Commission was abolished as of January 1, but this doesn’t mean your legal compliance obligations have gotten any easier. Far from it, in fact: The new seven-member Fair Employment and Housing Council is zealously committed to enforcing employee rights, and the Department of Fair Employment and Housing (DFEH) is now authorized to prosecute cases directly in court and collect both attorneys’ fees and costs.

Even the best-intentioned employers can make devastating missteps when it comes to compliance with the full array of antibias laws—particularly in California, where you have the employee-friendly protections of state law to worry about. Now’s the time to get prepared.

• Bias allegations: Learn how to protect yourself from litigious employees (and former employees) and zealous government investigators.
• Unions and the NLRB: You don’t need a union, or even the threat of one, to get on the NLRB’s bad side. Learn how the agency’s reach is increasing—and how to stay off their list of targets.
• Wage and hour: Clocking in and out … donning and doffing … classification errors … overtime violations. There are just so many ways to get it wrong here. We’ll explain how to make sure you stay out of trouble.

HEALTH CARE

Following the 2012 election, both Obama and “Obamacare” are here to stay—and the countdown to the 2014 individual mandate is on. That’s why you need to get your house in order now, in 2013. If you have 50 or more full-time-equivalent employees, that includes deciding if you’ll “play or pay” pursuant to what’s considered perhaps the most contentious of all the Affordable Care Act (ACA) provisions.

You won’t want to miss our up-to-the-minute healthcare update. We’ll cover the following and much more:

• Short-term—but pressing—obligations as they relate to “play or pay”
• The keys to formulating a successful long-term strategy for your employees’ health benefits
• Common missteps to avoid when designing and administering cafeteria plans, and the specific compliance challenges your organization may face
• How to create an effective wellness program that won’t create unexpected legal landmines
• Best practices for negotiating with vendors to get the best deals on benefit offerings

COMPENSATION AND BENEFITS

A well-organized pay program is more important now than ever before, in the wake of the Great Recession. Merit budgets are smaller, compensation programs are challenged, and you simply need to do more with less. We’re also seeing philosophical changes occurring at the highest levels of government with respect to the idea of “pay for performance,” such as demands for aggressive approaches to reducing the wage gap between men and women.

To keep up with other employers, as well as to attract and retain top talent, it's a must for you to be up to date on the latest trends so you can remain competitive. We’ll explain:

• Everything you need to know about job evaluations
• Pay surveys and pay ranges
• How to effectively communicate with employees about their compensation and benefits
• The keys to effectively incentivizing the behaviors you want to encourage—without breaking the bank
• Tips for making employees aware of just how much value they’re receiving from their benefits packages

EMPLOYMENT LAW HOT TOPICS

We’ll give you the real skinny on the latest HR-related developments that are keeping you up at night: wage and hour conundrums … “BYOD” (Bring Your Own Device) dilemmas … drugs in the workplace … guns in the workplace … and so much more:

• Marijuana laws, medical and otherwise: What HR needs to know
• The details on the recent changes to California’s protections for pregnant employees
• The U.S. Supreme Court’s much anticipated ruling on what it really means to be a “supervisor”
• The sweeping impact the DOL’s proposed “Plan/Prevent/Protect” (P3) initiative could have on your workplace
• The ever-shifting world of same-sex marriage in California, and its effect on your benefits plans
• Potential changes to the rules on class waivers in arbitration agreements
• And much more—stay tuned for the breaking developments we’ll schedule as they arise!

Don’t miss your chance—sign up for CELU  before the end of the month, and save $100 on your registration. Get the full details here—we hope to see you this fall.

Download your free copy of How To Survive an Employee Lawsuit: 10 Tips for Success today!

Social media—it’s everywhere HR turns. In a recent BLR/HRHero-sponsored webinar, Patricia Trainor and Stephen Bruce, Ph.D., identified eight tentacles that you need to watch out for.

Attorney Trainor is BLR’s senior managing editor, HR; Bruce is editor of the HR Daily Advisor. (BLR is CER’s parent company.)

Tentacle #1—Sourcing and Recruiting with Social Media

It’s clear that social media is rising as a method of recruiting, and some employers are enjoying great success.

However, when you use only one source for finding candidates, there’s always the danger of discrimination charges, especially if protected groups aren’t well represented.

Whatever method you use for sourcing, be consistent in how you treat applicants, resumes, application forms, and interviews.

Tentacle #2—Background Checks on Social Media Sites

There are strong arguments for and against doing these checks, but if you choose to do them, there are ways to minimize your exposure.

The Position Against

First, the position against doing the checks—you’ll find out things you don’t want to know. For example:

• Membership in a protected class (for example, gender, race, ethnic background, religion, disability, marital status, or sexual orientation).
• Medical information. You might read, for example, “My mom just found out she has breast cancer—I wonder if I’ll get it,” OR “I’m so excited, I just found out I’m pregnant.”
• Other information such as attitude toward unions.

Ultimately, the fact that you know this information can work against you in a discrimination lawsuit. As they say, you can’t unring the bell.

Social Media for California Employers: How to Reap the Benefits and Avoid the Risks—exclusively at this fall’s California Employment Law Update conference. Learn more.

The Position For

The position for doing social media background checks—if you don’t do the check, you won’t find out things you do want to know (for example, tendency to violence, racial attitudes, or extreme behavior).

Furthermore, if you don’t do the check, it could lead to a charge of negligent hiring.

And here are a couple of related issues.

First of all, FCRA—the Fair Credit Reporting Act. As you know, if you involve a third party in doing your background check, you’ll need to comply with FCRA’s notification rules.

Another issue is passwords. States are starting to pass laws restricting employers from asking for user names/passwords. Most experts recommend against this anyway.

Site access rules are another danger zone. Sites have access rules that you shouldn’t violate when trying to enter. For example, you shouldn’t try to go in under a false or made-up name or under any false pretenses.

So what should you do?

One solution, of course, is don’t do these checks. But that’s going to be hard to maintain.

If you do check, here are two things you can do that will minimize your exposure.

First, filter—that is, have someone else do the check and filter out unwanted information before reporting to you. You could use an outside firm or use an inside person not in the hiring chain.

Inside or outside, you should provide a list of what you want checked and what you want reported and then be consistent in applying your guidelines.

The second thing you can do is to limit the check to finalists only. By that time, you’ve probably interviewed the person, and you typically know all demographic information like age, race, and gender.

Whatever you decide, train your hiring managers.

Tentacle #3—Productivity Issues

The problem of employees wasting time by overusing social media at work is simply a policy/discipline issue. Plainly put, you can insist that employees work during working hours, and you can discipline them when they don’t.

Unfortunately, as a practical matter, it’s difficult to forbid all social media activity while at work. Employees have not only their work computers but also their smartphones and tablets. 

So set your expectations—and then when there is a problem, go ahead and discipline. If you don’t act, you are condoning the behavior. And by the way, all the other employees are watching to see whether you act or not.

Save $100 if you register for CELU before the end of the month. Click here for more.

Tentacle #4—Inappropriate Actions Toward Coworkers

These actions can consist of

• Harassment—sexual, religious, etc.
• Threats of violence
• Teasing and meanness

These actions must be dealt with just as you would if they were on paper or in person. Initiate an investigation and take appropriate actions if the investigation reveals that the actions were contrary to company policy.

In tomorrow’s CED, more social media tentacles.

Download your free copy of How To Survive an Employee Lawsuit: 10 Tips for Success today!