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Employment Law Update

Joint Employer Status: Minimize the Risk of “Their” Employees Becoming Your Employees continued from page 6

  • Avoid the urge to subject a worker to restrictive covenants following the termination of his or her assignment with you.

  • Avoid any suggestion in the contractual documentation between you and the contracting firm that the worker is your employee. While courts will generally not find this factor persuasive, you should avoid permitting the worker to point to documentation between the two entities supporting his or her argument that he or she is your employee. Indeed, you should use such

documentation to clarify the nature of the relationship and contractually bind the contracting firm to manage its employees in a manner that will minimize the risk to your company.

While not all of these procedures will be feasible or desirable in every situation, employers are well advised to analyze contractor relationships to minimize the risk of becoming subject to liability under various federal, state and local statutes and the common law.

Last Chance Agreements — Protecting Employers While Giving Employees a Second Chance

In recent years, last chance agreements (“LCA”) and return to work agreements (“RWA”) have been gaining support from employers and courts alike. Under these agreements, instead of terminating an employee for committing an infraction, employers permit the employee to return to

The court held that while “current drug rehabilitation is considered a disability under the law, current drug use is not.” Therefore, by ingesting drugs, the employee breached the terms of his return to work agreement, and the employer had a legitimate, non-discrim- inatory reason for terminating his employment.

work subject to conditions specified in the LCA or RWA. These agreements state the specific terms by which the employee must abide to maintain his or her employment, and specify that failure to abide by the terms will result in termination.

In situations in which an employee’s original infraction occurs as a result of the employee’s drug or alcohol use, the agreements typically have provisions that require the employee to enter some sort of rehabilitative therapy and provide that further use of an illegal substance or alcohol will result in termination. If the employee relapses and is

then terminated because he has violated the agreement, the employee may claim that his or her termination is discriminatory and violates the American with Disabilities Act (the “ADA”) or a similar state law. Courts have rejected this claim. Termination in those instances is not discriminatory, but rather the result of the employee breaching his or her agreement — an agreement that the employee voluntarily entered into and one that is supported by valuable consideration, specifically, the employee’s continued employment.

For example, the Ohio Supreme Court in Partlow v. Blue Coral-Slick 50, 2005 WL 1792611 (Ct. App. Ohio 2005), held that an employer’s termination of an employee for failing to abide by his RWA did not violate the ADA. In Partlow, the employee had informed his employer that he had a drinking problem; in turn, the employer offered him the use of its employee assistance program (“EAP”). During an outpatient counseling meeting with a counselor from the EA , the employee divulged that he also had a drug addiction. Once the employee relapsed into drug use, the employer placed him on medical leave while he obtained inpatient care at a treatment facility.

Thereafter, the employee was given permission to return to work, conditioned upon signing a RWA that required, among other things, that he submit to unannounced drug and alcohol testing and that confirmed positive test results, or failure to abstain from the use of alcohol and controlled substances, would result in the termination of his employment. He returned to work, but eventually used

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Kramer Levin Naftalis & Frankel LLP

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