Quick Hits - July 19, 2023 - American Society of Employers - ASE Staff

Quick Hits - July 19, 2023

Senate confirms Kotagal for EEOC Commission:  The U.S. Senate narrowly confirmed Kalpana Kotagal, Cohen Milstein Sellers & Toll PLLC partner, to serve on the U.S. Equal Employment Opportunity Commission on July 13th, a long-awaited step that will give Democrats the majority at the five-seat agency for the first time under the Biden administration.

Think your workforce is “higher” than usual?  You’re probably right:  As some states have moved to legalize recreational marijuana, the overall workforce drug test positivity rate has climbed to a narrow, two-decade high across workers in all sectors, according to an analysis by Quest Diagnostics.  Broken out by industry, retail trade had the highest count of positive tests for all drugs—not just marijuana—in 2022 with 7.7%, followed by accommodation and food services (7.0%) and transportation and warehousing (5.3%). They were trailed by construction (4.7%), manufacturing (4.5%), and finance and insurance (3.6%).  Positivity rates for marijuana in the general U.S. workforce, based on more than 6.3 million urine tests, continued an upward climb, increasing to 4.3% in 2022—the highest positivity rate ever reported in the study—over 3.9% in 2021 and 2.8% in 2018.  Source:  Supply Chain 6/26/23

Can I throw a terminated employee's things out? In Robinson v. Priority Automotive Huntersville, Inc., two employees resigned from their jobs and sued their employer. In addition to claiming a racially hostile work environment (which was dismissed by the Fourth Circuit for failing to meet the standard for a HWE claim under Title VII), the employees brought a rather unusual claim under state law – conversion – based on the allegation that the employer threw out several items that they owned and kept at their desks at work.  Under North Carolina law, a conversion claim exists when a defendant wrongfully takes another’s property, resulting in an alteration of the property’s condition or the owner’s loss of the property. In this case, the employees owned the items, and the Fourth Circuit recognized that it was possible for a jury to find for the employees on their conversion claim if the evidence showed that the employer had, in fact, thrown out the items.  Best bet, box up the employees’ stuff and send it to their address on file.  It saves you from complications later down the road. Source: Shawe Rosenthal LLP 6/30/23

Can we fire an employee for a Facebook post? Rita Hall worked for Kosei St. Marys Corporation (“KSM”) as a line supervisor. In June 2020, Ms. Hall posted an offensive image on her public Facebook page comparing a group of monkeys to a group of African Americans. Several KSM employees complained to KSM management about Ms. Hall’s post. KSM subsequently terminated Ms. Hall solely because of her racially offensive Facebook post. Ms. Hall sued KSM, claiming she had been wrongfully terminated for exercising her free speech rights under the U.S. and Ohio state constitution. As can be expected, the free speech claim did not hold up and the court ruled for the employer, KSM.  The crux of the story is that even when an employer may be legally within its rights to terminate an employee for offensive speech, even outside of work, doing so is not without risk or expense.  Source: Squire Patton Boggs 7/5/23

Remote positions harder to find especially for HR: Remote and hybrid job postings have declined during the past year, with the largest dip seen in human resources roles, according to a June 28 report from Indeed Hiring Lab.  At the same time, job seeker interest in remote work has remained at an all-time high since early 2022.  “Job seekers continue to search for remote/hybrid roles at near-record levels, even as the share of postings overall that advertise flexible work arrangements has fallen lately,” Daniel Culbertson, an outreach economist at the Indeed Hiring Lab, wrote in the report. Overall, the share of job postings for remote or hybrid work options dropped from a peak of 10.3% in February 2022 to 8.4% in May 2023. One of the major contributing factors seems to be the types of jobs where hiring has slowed, according to the report. remote work is rising in more job categories than it is falling, with 33 of 55 job categories seeing an increase and accounting for 49% of job postings on Indeed in May 2023. On the other hand, the largest declines were in general corporate roles, such as human resources, marketing, and media and communications. Human resources had the largest decline in remote or hybrid postings, dropping from 23.9% in May 2022 to 19.2% in May 2023.  Source:  HR Dive 7/5/23

Federal contractors must have employees take TikTok off their personal phones: The Federal Acquisition Regulatory Council (FAR Council) recently issued an interim rule, FAR 52.204-27, which implements the OMB's guidance prohibiting the use of TikTok on information technology used by federal agencies and contractors and expands the reach of the previous prohibition of TikTok on personal devices that are used in contract performance. Specifically, the OMB directive had important implications for government contractors, as the memo applied to all "information technology," as that term is defined in 40 U.S.C.§ 11101(6). This covered not only information technology (IT) owned or operated by federal agencies, but also to IT "used by a contractor under a contract with the executive agency that requires the use" of that IT, whether expressly or "to a significant extent in the performance of a service or the furnishing of a product." This definition does not "include any equipment acquired by a federal contractor incidental to a federal contract." Carried out by FAR 52.204-27, the interim rule is effective immediately.  Employers should work with their legal counsel on this issue.  Source:  Holland & Knight LLP 6/28/23

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