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*   *   *  Labor Law Developments  *   *   * 

New Hawai'i law allows for on-site drug testing.
          Employers and employee groups worked together to pass legislation enabling employers to conduct on-site drug tests. Act 179 took effect July 1 and allows employers to conduct preemployment, random, and reasonable-suspicion drug tests on-site with kits that are significantly less expensive than the previously required drug tests conducted at state certified laboratories.
          The on-site test kits, which cost between $ 12 and $20 and are available to test saliva, can be used in remote locations such as construction sites. Results can be available in a few minutes. Those benefits in cost and time savings are significant when compared to lab tests costing $50 or more and the anxiety of waiting hours or days for test results. Employers reported that on average, only three to five percent of applicants tested positive in preemployment drug testing, so having the ability to conduct such tests economically and at the workplace should encourage and enable more employers to do so.
          If an on-site test returns a positive result, the new law requires employers to have the employee or applicant tested at a laboratory within four hours. It also provides for sanctions against an applicant or employee who refuses a request to take an on-site test or tails to report to a testing center after an on-sire positive result. [CLEAR source: Hawaii Employment Law Letter, 07-2007, p. 6]

EEOC, Walgreens Settle Claims Of Race Bias for $20 Million
          The Equal Employment Opportunity Commission July 12 announced a $20 million proposed settlement of a systemic race discrimination suit under Title VII of the 1964 Civil Rights Act against Walgreen Co., a national drug-store chain (EEOC v. Walgreen Co.. S.D. Ill., No. 07-CV-172-GPM, proposed consent decree filed 7/12/07).
          The EEOC and Walgreens have filed a proposed consent decree to settle the Title VII suit pending in the U.S. District Court for the Southern District of Illinois. The EEOC had alleged that Walgreens discriminated against black retail management and pharmacy employees in promotions, compensation, and assignments. The consent decree, which would provide monetary relief to an estimated 10,000 class members, is subject to approval by Judge G. Patrick Murphy of the district court.
          "We commend Walgreens for working cooperatively with us to reach an amicable settlement of this case without protracted litigation," EEOC Chair Naomi Earp said in a statement. "We believe this is a satisfactory resolution for all parties."
          Jeffrey A. Rein, Walgreens' chief executive officer, stated that the Deerfield, Ill-based company was pleased to reach an agreement "consistent with our past and future diversity and equal employment opportunity objectives."
          "Our company was built on principles of fairness and equality, and we do not tolerate discrimination in any aspect of employment, including store assignment, compensation, and promotion opportunities," Rein said in a statement. "In fact, we're a drugstore industry leader when it comes to employment and promotion of African American managers and pharmacists."
          In June 2005, a private race discrimination suit was filed in the Southern District of Illinois against Walgreens by 14 black former and current employees alleging Title VII violations. That suit was consolidated in April with the EEOC's action filed earlier this year.
          Tiffany Klosener, a lawyer representing the private plaintiffs, stated that Walgreens is "a rapidly growing company with lots of opportunity" and that private counsel looks forward to working with Walgreens "to promote fair and equal employment opportunities for all employees."
          The law firms of Poland, Wickens, Eisfelder, Roper & Hofer in Kansas City, Mo., and Goldstein, Demchak, Bailer, Borgen & Dardarian in Oakland, Calif., and the Spriggs Law Firm in Tallahassee, Fla., represented the private plaintiffs. The firms of Littler Mendelson in Chicago and Gundlach Lee in Belleville, Ill., represented Walgreens. Andrea G. Baran, Barbara A. Seely, Jean P. Kamp. and Robert G. Johnson of the EEOC's offices in Kansas City, Kan., Chicago, and St. Louis represented the commission.
          Text of the proposed consent decree may be accessed at [CLEAR source: BNA's Labor Relations Reporter, 07-23-07, 182LRR82]

Employers celebrate governor's veto of workers' comp legislation
          Employers claimed victory when Hawaii Gov. Linda Lingle vetoed a workers' compensation bill that would have placed more requirements on temporary total disability and wage loss payments.
          H.R. 854 would have mandated that wage loss or temporary total disability payments be continued until the director of Labor and Industrial Relations holds a hearing and issues a decision. Payments would also have continued unless the injured worker's treating physician determined that the employee was able to return to the job and the employer had made a bona fide offer of light-duty work that fell within the employee's work restrictions. In addition, the measure also stipulates that if benefits were found unnecessary after a hearing and a decision, benefits paid in error could not be recouped by the employer. Benefits could only be cut off from the date of the decision.
          "Improper termination of ongoing temporary total disability benefits is a source of much disruption and vexation to injured workers and those medical and vocational providers who seek to restore them to gainful employment," the bill stated.
          Labor unions argued that the legislation is necessary to ensure that injured workers don't get their benefits cut in the event of a dispute, especially because it can take months for the dispute to be resolved. However, the Chamber of Commerce of Hawaii came out against the measure, saying it would add unknown and potentially large costs to the employer. Jim Tollefson, president of the chamber, said that since there is no credit to the employer for temporary total disability overpayments, an injured worker can collect twice for the same injury when they collect permanent partial disability benefits. This double-dipping is not allowed today, so it will inevitably increase costs, he said.
          Tollefson said the chamber is still concerned about another workers' compensation bill on the legislative table. H.R. 855 includes language that prevents an employer's insurer from recovering payments made for treatments that are later deemed unnecessary by the director of labor. The employer or employer's insurer may recover payments only after it receives notification of the director's decision.
          For more information, visit the chamber's Web site at [BNA's Workers' Compensation Report, 05-22-07, 18WCR224]

U.S. Supreme Court Pushes Time Limitation Back for Employment Discrimination
          THE U.S. SUPREME Court on May 29 ruled, 5-4, that an employee bringing a lawsuit claiming pay discrimination under Title VII of the Civil Rights Act of 1964 must do so within 180 days of the original discriminatory action-not within 180 days of his or her last pay-check. Ledbetter v. Goodyear lire & Rubber Co., No. 05-1074.
          Lilly Ledbetter worked at Goodyear's Gadsden, Ala., plant for 19 wars. In 1999, after she had retired, she filed suit in an Alabama federal court alleging that, because of sexual discrimination, she was making $6,000 a year less than the lowest-paid man doing the same work. She didn't sue earlier, Ledbetter explained, because employees are less willing to rock the boat when they are new on the job and have no reason to believe there could be such pay disparity.
          The Equal Employment Opportunity Commission said Ledbetter's claims could go forward. An Alabama federal jury found that she was discriminated against, and that the impact of early pay decisions by the company affected her until the time she filed initially with the EEOC. She was awarded $223,000 in back pay and more than $3 million in punitive damages.
          The 11th U.S. Circuit Court of Appeals reversed, holding that the district court should have granted Goodyear's motion for judgment as a manner of law because the statute required Ledbetter to file her complaint with the EEOC within six months of the alleged illegal employment practice. Ledbetter was complaining about decisions made by her supervisors long ago, well after the deadline for raising allegations of discrimination. No employment decision with discriminatory intent, the court said, occurred within 180 days of her filing her claim.
          The justices affirmed, rejecting Ledbetter's argument that each pay-check issued violated Title VII, triggering a new six-month EEOC filing period. Writing on behalf of the court, Justice Samuel A. Alito Jr. wrote that "a pay-setting decision is a discrete act occurs.
          "A new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination," Alito said. Current effects alone cannot breathe life into prior, uncharged discrimination. Ledbetter should have filed an EEOC charge within 180 days of each allegedly discriminatory employment decision.
          Alito's opinion was joined by Chief Justice John G. Roberts Jr. and justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. Justice Ruth Bader Ginsburg's dissent was joined by justices John Paul Stevens, David H. Souter and Stephen G. Breyer. [CLEAR source: National Law Journal, 06-04-07, NLJ p14]

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