Like many other states, Alabama has a drug-free workplace program regulating drug testing. Employers who establish such a program, as certified by the state’s labor department, can qualify for a discount on their workers’ compensation insurance premiums. However, employers must follow the state’s rules to get their discount. In Alabama, employers must test in certain circumstances, and must observe certain procedures intended to protect employee and applicant rights.
Alabama employers who have a drug-free workplace program are required to drug test applicants who have received conditional offers of employment. More limited testing is allowed if it is conducted on the basis of reasonable classifications of job positions. For example, an employer that doesn’t want to test every job applicant could instead test only those applicants whose jobs would require potentially dangerous activities (such as operating heavy machinery or carrying a weapon).
If an employer requires applicants to take a test, it must include a notice in its job announcements or ads regarding the testing requirement.
Alabama employers with a drug-free workplace program must test employees in the following circumstances:
In addition, employers may conduct random drug testing.
An employer that conducts drug testing must post its policy, and employees must have at least 60 days’ notice of the policy. Employees who test positive have five days to contest or explain the result. State laws also require employers to use certain procedures for gathering specimens, testing, maintaining confidentiality, and so on.
Have you been illegally asked or required to take a drug test? Even though Alabama law allows employer to drug test, employees and applicants may have legal claims based on how the test was conducted, who was tested, or how the results were used. Here are some examples:
I am a newly divorced dad, and the court ordered me to pay child support. Rather than just telling me how much I owe each month and letting me figure out how to pay it, the court issued a wage garnishment order. Now, almost a third of my take-home pay, after deductions and tax withholding, is going straight to my ex-wife! Is this legal? Isn't there a limit on how much of my wages can be garnished?
There is a limit on how much of your wages can be garnished to pay child support (or child support plus spousal support). Believe it or not, however, the amount you are paying is well below that limit.
Generally speaking, there are a lot of legal protections for debtors when it comes to how creditors can collect what they are owed. For example, a credit card company or department store can't simply garnish your wages if you stop paying your bills. They must first sue you, win the lawsuit, and get the court to issue a wage garnishment order against you. Once they jump through all of these hoops, the amount they can garnish is limited to a maximum of 25% of your disposable income. For more information see Nolo’s article, If Your Wages are Garnished: Your Rights.
The rules are different for debts that are considered a higher priority. These debts include back taxes, student loans, and child support. Since 1988, all court orders for the payment of child support automatically include an order for wage withholding to pay that amount. (If you also owe spousal support or alimony, that amount may be included in the wage withholding order. However, if you owe only spousal support and not child support, the court will not automatically order wage withholding.)
Because child support is so important, the law sets a very high limit on the amount that can be withheld from your paycheck for this purpose. If you are not currently supporting another child or spouse who are not the subject of the order, up to 60% of your wages can be garnished. However, if you are currently supporting another child or a spouse (for example, if you have remarried and had another child), the court can order that up to 50% of your wages be withheld for child support.
The amount withheld from your check – about a third of your wages – is well within these limits. If you feel that you don't have enough to live on after your child support is deducted, that's a matter to bring up with the family court judge. Talk to your divorce lawyer to find out your chances for obtaining a modification of your child support obligations.
]]>The owner of the company I work for just announced a new policy for the New Year: Any employee who smokes must quit within the next three months or be fired. Employees who smoke can sign up for smoking cessation programs to help them quit, which the company will pay for. But anyone who is still lighting up at the end of three months will lose their job. I enjoy an occasional cigarette, and I don't want to give it up. Is it legal for my employer to force me to quit? As long as I don't smoke in no-smoking areas at work, what business is it of my employer whether I choose to smoke?
Some employers have adopted policies that encourage (or coerce) employees to quit smoking in order to save money. Studies show that smokers are sick more often, which means they use more sick days and are more likely to utilize their health insurance. For employers who provide health benefits, this means higher premiums for the company. And, smokers tend to take more frequent breaks at work, as most workplaces across the country now don't allow smoking in indoor locations.
That answers your question of why employers might want to adopt this type of policy. But is it legal? It depends on your state's law. Federal law doesn't address whether employers can fire employees for smoking. In a number of states, however, it is illegal to fire an employee simply for being a smoker.
These laws, often called "off-duty conduct" laws or "lifestyle discrimination" laws, take several forms. In some states, such as California, employers are prohibited from taking action against employees for any lawful activities they choose to undertake in their own time, away from the work site. Some states, including Nevada, protect employees from discrimination for the lawful use of any product offsite during non-work hours. And, some states, like Connecticut, limit the protection to smoking or tobacco products. In these states, employees may not be fired for smoking or otherwise using tobacco, and they may not be required to quit as a condition of employment.
Your employer's decision to fire employees who don't quit smoking would violate these off-duty conduct laws, whether they apply just to tobacco or to anything an employee does off duty. However, if your state doesn't have an off-duty conduct law, your employer's policy change is likely legal. To find out whether your state has a law like this, select it from the list atWorkplace Smoking Laws in Your State.
]]>But there are employees who have a legitimate need to view the information in a personnel file. For example, a supervisor may need to review performance evaluations to decide whether to promote an employee, or the human resources manager may need to review an employee's salary information to decide what to pay a new hire in the same position. And, in most states, employees have the right to inspect their own personnel files. (To learn more about an employee's right to inspect his or her own personnel file, read Nolo's article Employee Access to Personnel Files: Is It Required?)
Treat personnel files like any other private company records. You can do this by keeping employee files in a locked cabinet. Make them available only to those people in your company who have a legitimate business need to access the files. For example, you might establish a policy that only the human resources manager, the individual employee's manager, and the employee have a right to see an employee's file. This will protect your employees' privacy and limit opportunities for inappropriate documents to find their way into the files.
Special guidelines apply to medical information pertaining to your employees. For example, the Americans With Disabilities Act (ADA) imposes very strict rules for handling information obtained through post-offer medical examinations and inquiries. Employers who are covered by the ADA must keep these medical records confidential and separate from other personnel records. This information may be revealed only to safety and first aid workers, if necessary to treat the employee or provide for evacuation procedures; to the employee's supervisor, if the employee's disability requires restricted duties or a reasonable accommodation; to government officials as required by law; and to insurance companies that require a medical exam.
The Health Insurance Portability and Accountability Act (HIPAA) also imposes privacy obligations on many employers who provide group health plans. (Employers who administer their own plans and have fewer than 50 participants don't have to comply with HIPAA's privacy rules, and employers that sponsor plans that receive only enrollment information have minimal obligations.) Under HIPAA, employers are required to protect the privacy of employees' personal health-related information by designating an in-house privacy official, adopting policies and procedures to keep this information private, and notifying employees of their privacy rights, among other things. For more information on HIPAA's privacy rules, go to the HIPAA website established by the federal Department of Health and Human Services, at www.hhs.gov/ocr/hipaa.
The Genetic Information Nondiscrimination Act (GINA) also requires employers to keep employee medical records confidential. GINA prohibits employers from requesting or requiring that employees provide genetic information. If, however, the employer receives such information inadvertently or pursuant to one of the strict exceptions to the law, the employer must keep it in separate, confidential files.
Some state laws also provide special protections for employee medical records. These laws may limit the way such records can be used or the people who can view them.
For help in establishing policies regarding personnel files, get Create Your Own Employee Handbook: A Legal & Practical Guide, by Lisa Guerin and Amy DelPo (Nolo).
]]>Because filming can implicate privacy rights, however, employers must be very careful not to cross the line. (Employers can learn more about their workers' privacy rights in Nolo's Your Employees' Right to Privacy section.)
Most employees don't mind if retail establishments conduct video surveillance to guard against theft by outsiders. For example, there might be a video camera that tapes everyone who comes in the door or stands in front of the register.
But what about employers that use hidden cameras to try to catch their own employees stealing? What about video surveillance of employees while they're working? Or cameras in the bathrooms or locker rooms?
Whether filming employees at work is legal depends on state law and on what images are being captured.
Privacy is a cherished value for most of us, and state legislators know it. Most states have passed at least some privacy-related laws. Many of these laws are intended to protect consumers by, for example, limiting the ways companies may use personal information or requiring businesses to maintain the confidentiality of medical information or Social Security numbers.
Some states have also passed laws that deal with workplace privacy, including the use of cameras and video equipment. In California, for example, it's a crime to install a surveillance mirror (one that can be seen through from only one side and looks like a mirror on the other side) in a restroom, shower, fitting room, or locker room. In Connecticut, employers may not operate surveillance equipment in areas designed for employee rest or comfort -- such as restrooms, locker rooms, or employee lounges.
To find out more about your state's workplace privacy laws, contact your state labor department.
Even if your state hasn't passed laws that specifically protect workplace privacy, you almost certainly can't tape or film employees while they are doing certain things at work, such as using the restroom or changing clothes.
If there's no state law that specifically allows or prohibits surveillance, courts determine whether an employee's privacy has been violated by looking at two competing interests: the employer's need to conduct surveillance and the employee's reasonable expectation of privacy.
An employee who is using the bathroom or getting undressed has a very strong, and very reasonable, expectation of privacy -- and few (if any) employers will have a substantial enough need to justify filming employees doing these things.
It is a violation of federal labor law for employers to secretly film or tape union meetings.
Although some courts have ruled against employees who challenged employer surveillance of their activities while on leave for a medical condition or workers' comp injury, these cases often involve fairly clear employee abuse of leave laws. (For example, one employee who was too ill to work was apparently well enough to spend the day at the gym; another took FMLA leave when his request to use vacation time was denied, then recuperated in Las Vegas.)
A court could well rule differently if an employer's surveillance strayed into private activities and effectively deterred employees with a legitimate need for leave from exercising their legal rights.
If you have questions about the legality of your business's surveillance policy, you might want to consult with an attorney.
To locate an employment law attorney in your area, visit Nolo's Lawyer Directory, where you can view information about each lawyer's experience, education, fees, and perhaps most importantly, the lawyer's general philosophy of practicing law.
By using Nolo's directory you can narrow down candidates before calling them for a phone or face-to-face interview.
]]>Employees of government and public entities have a constitutional right to privacy that protects them from most employer monitoring of, or even inquiring about, their off-the-job conduct. For public employers, then, this type of monitoring is largely off-limits.
In the private sector, a number of laws prohibit employers from intruding into their employees' lives outside of work. Some state constitutions specifically provide for a right to privacy, which prevents private employers from looking into their employees' off-duty activity. Some states, including California, have laws prohibiting employers from taking any job-related action against a worker based on that worker's lawful conduct off the job.
Even in those states that don't provide private workers with a constitutional or statutory right to privacy, it is generally illegal for an employer to intrude unreasonably into the "seclusion" of an employee. This means that physical areas in which an employee has a reasonable expectation of privacy are off-limits to employers, unless there is a very good reason to intrude. And an employer is never allowed to physically enter an employee's home without consent (even when searching for allegedly stolen property belonging to the employer).
The same balancing approach often applies to private information. Generally speaking, an employer may not inquire about or otherwise obtain facts about employees' private lives. For example, an employer may not ask employees about their romantic relationships or sexual likes and dislikes.
Courts and legislatures have created some specific rules for certain types of private, off-duty activities.
Under the National Labor Relations Act (NLRA), it is illegal for an employer to monitor or conduct any surveillance of employee union activities, including off-the-job meetings or gatherings. This rule also applies to any concerted activity (that is, activity undertaken by workers acting together, rather than individually) even if no union is involved, as long as employees are discussing their work conditions or terms of employment. An employer who sends a supervisor to eavesdrop on such meetings, or plants a spy among employees engaged in such conduct, violates the NLRA.
Because drug testing has the potential to reveal an employee's use of drugs outside of work hours, it has been the subject of much privacy litigation. In general, drug testing is permitted in the job application context, where employees are performing safety or security-sensitive work, or when an employee has given an employer some reason to believe that he or she is impaired by drugs at work. (See Testing Job Applicants for more information about drug testing.)
An employee's off-the-job political and religious activities are off-limits to his or her employer. Federal and state laws prohibit discrimination on the basis of religious or political affiliation. However, an employee who brings politics or religion to work, by proselytizing or attempting to convert others, for example, may be subject to discipline by the employer.
Generally speaking, working more than one job is lawful. However, an employer has the right to limit after-hours work that is in conflict with the employer's own business. For instance, going to work for the competition could provide grounds for discipline or discharge.
Many states make it illegal for employers to discriminate on the basis of marital status. Therefore, employers may not keep track of whether their employees are single, married, or divorced, except as may be necessary for providing certain benefits such as health insurance. However, tricky issues can arise when, for example, one spouse applies for a position in which he or she would supervise the other, or an applicant's spouse works for the hiring company's major competitor. To find out whether your state prohibits marital status discrimination, and how its law might apply to situations like these, contact your state fair employment practices agency.
May an employer take action against an employee who has been arrested for driving under the influence or convicted of a crime? If an employer learns that a worker has engaged in illegal conduct off duty, can the employer ask the worker about it? In many states, the answer to these questions is "no," unless the off-duty illegality has some concrete impact on the employee's work or the employer's business interests. An employer would be entitled to look into the drunk driving arrest or conviction of a bus driver or the embezzlement conviction of a bank employee, for example.
For a complete guide that contains everything you need to know about being an employer, get The Employer's Legal Handbook: Manage Your Employees & Workplace Effectively, by Fred Steingold (Nolo).
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