Monthly Archives: August 2011

EEOC Backs Alcoholic Truck Drivers.

The federal government has sued a major trucking company for its firing of driver with an admitted alcohol abuse problem.

Alcoholism is classified as a disability under the Americans with Disabilities Act, the suit maintains, and therefore employees cannot be prohibited even from driving 18 wheelers due to their histories of abuse.

The Equal Employment Opportunity Commission, which filed the suit against the Old Dominion Freight Line trucking company on August 16, noted that while “an employer’s concern regarding safety on our highways is a legitimate issue, an employer can both ensure safety and comply with the ADA.”

The EEOC detailed the case on its website:

Old Dominion Freight Line, Inc., a trucking company with a service center in Fort Smith, Ark., violated federal law by discriminating against at least one truck driver because of self-reported alcohol abuse, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today. The company should have met its legal obligation to comply with the Americans with Disabilities Act while assuring safety, rather than permanently sidelining self-reporting drivers, the EEOC contended.

According to the EEOC’s suit (Civil Action No. 2:11-CV-02153-PKH in U.S. District Court for the Western District of Arkansas), the driver at the Fort Smith location had worked for the company for five years without incident. In late June 2009, the employee reported to the company that he believed he had an alcohol problem. Under U.S. Department of Transportation regulations, the employer suspended the employee from his driving position and referred him for substance abuse counseling.  However, the employer also informed the driver that the employer would never return him to a driving position, even upon the successful completion of a counseling program. During the investigation, the EEOC discovered drivers at other service centers whom the employer had allegedly subjected to similar treatment…

“The ADA mandates that persons with disabilities have an equal opportunity to achieve in the workplace.  Old Dominion’s policy and practice of never returning an employee who self-reports an alcohol problem to a driving position violates that law,” said Katharine Kores, director of the EEOC’s Memphis District Office, whose jurisdiction includes Arkansas. “While the EEOC agrees that an employer’s concern regarding safety on our highways is a legitimate issue, an employer can both ensure safety and comply with the ADA.”

If the EEOC prevails, of course, it will mean that Old Dominion will still be liable both for any damage to life or property that results from a potential relapse by one of its recovering drivers – which in turn increases the risks involved in investment in the company – and for the cost of trying to ensure that such damage never occurs. All of these new burdens will raise Old Dominion’s cost of doing business, and hence the cost of everything they transport. And all of this can’t possibly ensure that a recovering driver does not relapse without the company’s knowledge.

The Cato Institute’s Walter Olsen notes that the EEOC has made a number of similar decisions:

For years the ADA has provided legal muscle to employees terminated for alcohol problems — just the other day, for example, a Florida State University administrator dismissed after frictions with staff sued the university for not accommodating his alcohol abuse. But that’s just the academic setting, where many administrators can glide by in a bit of a haze for years without causing real problems. (UCLA’s Steve Bainbridge quips that the college official’s description of drinking as a “handicap” is off base: “it’s always come in handy for me.”) Are we really required to take chances with 18-wheelers on the highway?

Despite the apparent precedent for alcoholism-related lawsuits, EEOC’s case might not be a slam dunk. As the Competitive Enterprise Institute’s Hans Bader notes, a federal appellate court ruled in 1995 that employers can fire someone for problems caused by an ADA-qualified disability if that disability “poses a significant risk [to others] that cannot be eliminated by reasonable accommodation.”

The U.S. Fourth Circuit Court of Appeals established that standard when it ruled against an HIV-positive individual who sued the University of Maryland Medical System Corporation for firing him from its residency program for fear that he might inadvertently infect hospital patients with the virus.  Source:  Lachlan Markay, The Foundry.

Should Labor Be Banned From Labor Day?

What would Walter say about today's Labor Day?

A group of Wisconsin union officials has voted to ban Republican politicians from a local Labor Day parade.  The real question is should we continue to celebrate Labor Day or should we find a different group facing tremendous challenges, and pause for a day to recognize their struggle and achievement?

I spent a good deal of time growing up in Cleveland, Ohio, and I loved and studied everything I could about the labor movement.  There was Albert Parsons, the father of the eight hour day, Walter Reuther who inspired the labor movement to support civil rights in spite of George Meany,  and William “Wimpy” Winpisinger the 12 year president of the IAM who sued the OPEC oil cartel during the energy crisis because the US Government wouldn’t.   The leaders of today’s labor organizations just seem to be self-absorbed, and politically correct.  Does anyone really think Jimmy Hoffa would have visited the White House with the regularity of Andy Stern, Richard Trumka, etc.?

“That’s just part of the Republicans mood across the country to attack labor and blame working people for everything,”   ~ State Rep. Gary Moore, president of the Tennessee AFL-CIO.  8/29/2011.

No Gary; I blame the labor leader irrespective of affiliation, that attacks the contributions of the entrepreneurs that have and do create the jobs that you become a parasite to for your own self-preservation.  The leaders in labor today are the shop stewards, local presidents, and the members themselves; however, this is not a group worthy of a national holiday.

Would Mr. Gompers support today's Labor Day?

I’m thankful to the many contributions of the labor movement: holidays, overtime, vacation, benefits, OSHA, etc.  It just seems to me that Labor Day has served its purpose much in the same way Pearl Harbor Day did.  Yet we haven’t really moved on to 9-11 Day in the same way.  Yes there was a struggle, and Cesar Chavez, Samuel Gompers, John Lewis, Philip Randolph, and many more helped overcome that struggle for the common American.  Today we have different struggles for the common American.  Terror, geo-political instability, collapsed housing, soon to be bursting education bubbles, and chronic unemployment.

We should replace Labor Day with Entrepreneur’s Day and celebrate those that have succeeded in spite of government regulation, lack of capital, a limited export market, and an underperforming public education system?  It’s time we recognized the efforts of Nick Denton (Gawker), David Neeleman (JetBlue) Reed Hastings (Netflix), and Peter Theil (PayPal) and many more.  I think they probably created more jobs than our current labor leaders?  We need to refocus.  We can still lament the cancelation of The Jerry Lewis MDA Telethon, be told that we should not wear white after Labor Day, and cook hot-dogs; however, we need to start recognizing and valuing those that can lift us up rather than demonizing them for their greed and lack of compassion.

In July I wrote about the Top 10 Reasons The Jobs Picture Would Not Improve In 2012, and the folly of having Jeffrey Immelt as the head of The White House Council on Jobs and America Competiveness.  We as HR professionals and for those of us that double as entrepreneurs need to initiate the effort to recall Labor Day.  Labor Day should be replaced with a holiday befitting the effort, risk, passion, and determination exemplified by some of the great labor leaders of the past century by recognizing the individuals demonstrating those behaviors in these times;  the entrepreneur.

AFL-CIO Backs Off Support For Obama & Democrats.

Speaking to reporters at a breakfast sponsored by the Christian Science Monitor, AFL-CIO President Richard Trumka (left) made it clear that his union is backing off from supporting President Obama and the Democrats in the 2012 elections and is instead going to funnel union funds into attempts to influence state outcomes.

He said,

We’re going to use a lot of our money to build structures that work for working people. You’re going to see us give less money to build structures for others, and more of our money will be used to build our own structure….

Let’s assume we spent $100 in the last election. The day after Election Day, we were no stronger than we were the day before. If we had spent that [$100] on creating a structure for working people that would be there year round, then we would be stronger.

In fact, so unhappy is Trumka with Obama that some of his affiliates won’t even be attending the Democratic Party’s 2012 national convention. His unhappiness stems from the perceived lack of support from the Obama administration over the card-check bill, which would have made union recruiting easier in current non-union shops, as well as the administration’s support for free-trade agreements with Colombia, South Korea, and Panama. Such agreements, if implemented, could conceivably have a negative impact on union employment in the country, which has been in steady decline for years.

And this decline is putting pressure on Trumka to determine where best to put his dwindling resources. After spending $400 million to help Obama get elected in 2008 and another $200 million in the 2010 mid-term elections along with another $5 million in a failed attempt to influence outcomes in Wisconsin, Trumka is looking for more influence in the 2012 election. He doesn’t think Obama is where to place his bets, especially in light of the administration’s continued failure to generate jobs despite massive stimulus measures. And recently Trumka has criticized the President for not taking the lead in the debt ceiling crisis:

I think he made a strategic mistake when he confused job crisis with debt crisis. He started playing on Republican ground….

He’s going to give a speech in a couple of weeks on job creation. If he’s talking about another percent or two from a tax here … and doing three years down the road something with [an] infrastructure bank, that’s not going to get the job done.

In fact, Trumka, a regular weekly visitor to the White House, gave some advice to the President about that speech: “I urged him to propose what is necessary to solve the problem and I hope he does. If they don’t have a jobs program, I think we could better use our money doing other things.”

So he’s going it on his own. By concentrating his financial and manpower resources at the state and local levels, Trumka is persuaded that he can accomplish his agenda more effectively despite his failure to do so in Wisconsin. That effort would revolve around the creation of a Super PAC, which, following the Supreme Court’s decision in Citizens United, allows unlimited fundraising from individuals, unions, and corporations to be directed in influencing political campaigns without directly supporting individual candidates. Trumka’s vision is a full-time political action committee operating year-round, working to influence not only union members but non-union workers as well. And the PAC would also direct manpower into local and state-wide elections to get out the vote. In the past those efforts have been directed almost exclusively to union members and their households.

But this reduction of force will have a negative impact on the Democrats’ national aspirations. According to Doug Schoen, a Democratic pollster, Trumka’s decision is a huge blow to Obama: “Obama needs to get labor back [into his corner] and I think he’ll be courting them furiously in the weeks and months to come.”

The new Super PAC will retain the familiar arm-twisting tactics with which federal candidates are painfully familiar but on a state level instead. As AFL-CIO political director Michael Podhorzer expressed it, “As far as our ability to hold folks accountable for next year’s state legislative battles, we hope this will make a difference and that’s why we’re pursuing this.” He added,

The essential idea is that changes in the law for the first time really allow the labor movement to speak directly to workers whether they have collective bargaining agreements or not. Before, most [of our] political resources went to our own membership.

The potential ramifications of such a change are huge: President Obama and the Democrats will have much less money and manpower to work with in the upcoming election; the perception that the AFL-CIO is unhappy with the current administration could further weaken union support for the President; and spreading out the slowly shrinking funds available into state legislative battles may substantially weaken the unions’ clout over time.

Obama’s primary constituency is fading, leaving him with an increasing likelihood of failure in his efforts at reelection. With the economy in decline, increasing resistance in Congress to further demands for additional spending and little to show for federal efforts to reduce unemployment, Trumka’s withdrawal of support could be the final nail in the present administration’s coffin come November 2012.  Source:  Bob Adlemann, New American.

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