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SHRM Newsletter: News Reports Say Positive Employee Drug Tests on the Rise
Posted on Sep. 29, 2014

This is Utah SHRM Legal-mail no. 2014-17 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).



NEWS REPORTS SAY POSITIVE EMPLOYEE DRUG TESTS ON THE RISE: A national employment law firm news site is reporting that the rate of employee positive drug tests has increased for the first time in about a decade. The entity making the study handles drug testing from employers all across the country. The study indicated that use of marijuana and amphetamines have fueled the increase, notably in the states of Colorado and Washington where recreational marijuana use is now legal under state law. You can read the news report here:

BENEFITS LITIGATION TRENDS: The primary federal law regulating employee pensions and benefits, the Employee Retirement Income Security Act (ERISA) is 40 years old this year. On this anniversary, there have been a number of articles discussing the impact of the law. One notes five interesting trends regarding issues currently under litigation involving ERISA. These trends are: (1) disputes over an employer’s obligation to negotiate lower fees on pension and 401(k) plans; (2) types of behaviors that breach plan fiduciary duties and the remedies for the same; (3) disputes over lost plan or employee records; (3) the impact of the Affordable Care Act; and (5) whether drops in stock prices or a restructure of benefits is a breach of a plan’s fiduciary duties. Happy Birthday ERISA!

EEOC SEVERANCE LAWSUIT AGAINST EMPLOYER DISMISSED: A federal court in Illinois has rejected and dismissed a lawsuit against an employer filed by the Equal Employment Opportunity Commission regarding the employer’s severance and release agreements. The EEOC had sued a large pharmacy company alleging that its severance release agreements are improper. The lawsuit attacked common provisions such as nondisparagement clauses and covenants not to sue—provisions it has previously approved in a similar context. One of the EEOC’s stated-concerns was its belief that such clauses will make an employee believe he/she cannot file an EEOC charge, something that can be done even if a release agreement has been signed. Yet, the challenged agreement itself contained a clause making sure the employee knew he/she retained such filing rights. The court ruled during a hearing and promised to issue a written opinion explaining its ruling. Stay tuned!

MAJOR EMPLOYMENT VERDICTS, SETTLEMENTS AND FINES: A national computer products company has agreed to pay almost id="mce_marker"2 million to settle claims that it improperly denied certain employees overtime pay required under the Fair Labor Standards Act (FLSA). The case involved the alleged misclassification of workers in jobs involving technical consulting and service information development. A Utah hotel company has agreed to pay a $2 million fine to resolve claims that it inappropriately hired undocumented workers. The hotel apparently had been warned about the problem in 2011, fired 133 employees but then re-hired over 40 of those same workers via temp staffing agencies. A national shoe retailer will pay just under id="mce_marker" million to resolve claims of age discrimination and retaliation resulting from a reduction in force. The company must also train all its employees in the involved locations on the prevention and eradication of age discrimination and also revise its anti-discrimination policy.

NLRB RULINGS CONTINUE TO VEX EMPLOYERS: The National Labor Relations Board (NLRB) has continued to issue rulings that vex employers on the issue of employee rights to engaged in concerted activity under the provisions of the National Labor Relations Act (NLRA). The latest rulings involve a privacy policy and Facebook activity. The first case involved an employee privacy policy at a school. The NLRB struck it down, concluding that it was overbroad. Specifically, the agency held that the privacy policy could be read to punish employees for discussing their wages and other matters related to the terms and conditions of employment. The policy language prohibited employees from disclosing any information about the school, its owners, students or employees. The second involved the discharge of two employees who had participated in a discussion about their employer’s state income tax withholding errors. One of the employees who was discharged had “liked” a comment made by a co-worker. The NLRB ruled that the Facebook activities were protected even though the employer had contended that the profanity-laced comments were defamatory and disparaging. The employer has appealed the NLRB ruling to a court, meaning that employers may soon get some case law guidance on whether the NLRB’s aggressive approach on these issues is valid,

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mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

Awards and Recognition


OBrien Best

Chambers 2011 Attorney

Super Lawyers
Michael Patrick O'Brien

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012