WEBINAR For Better or Worse — Oklahoma legislature lays down new laws for employers

While issues dealing with immigration, healthcare and gun rights grabbed most of the headlines this legislative session, those weren’t the only bills making their way through the Oklahoma House and Senate that could affect the workplace. State lawmakers also considered revisions to several existing laws which many believe take a decidedly more pro-employer stance.

In this one-hour webinar, moderator Charlie Plumb is joined by fellow employment attorneys Sam Fulkerson and Nathan Whatley to look back at this past year’s legislative session, recap the hottest topics affecting the workplace, including which measures passed and which ones failed, and analyze what these changes mean for Oklahoma employers. Offering additional insight is special guest Mike Seney, senior vice president of policy analysis and strategic planning for the State Chamber of Oklahoma.

Topics covered include:

  • Drug & Alcohol Testing — A bill which would significantly overhaul the state’s Standards for Workplace Drug and Alcohol Testing Act and give employers more clarity and control over their drug and alcohol testing procedures was introduced. The proposed changes to the Act included:
    » » The circumstances under which a public or private employer may request or require an applicant or employee to undergo testing
    » » Post-accident testing and how it affects workers’ compensation eligibility
    » » Random testing for individuals as well as select groups
    » » Testing of independent contractors and employees of independent contractors
    » » What needs to be communicated in a written policy
    » » Who pays for testing
    » » Testing facilities and procedures
    » » Disciplinary actions employers can take when an employee refuses to undergo a test or tests positive for the presence of drugs or alcohol
  • Oklahoma Anti-Discrimination Act — In what is welcome news for employers — especially those with fewer than 15 employees — lawmakers reviewed a measure which would amend the OADA and make it the exclusive remedy for employment discrimination. In addition to modifying definitions and deleting obsolete language, other proposed changes included:
    » » Providing undue hardship exceptions
    » » Expanding the Act to cover genetic discrimination information
    » » Applying the law to employment applicants
    » » Abolishing certain common law remedies
    » » Providing for legal standing
  • “Make My Day” law extended to the workplace – The new state law gives civil and criminal immunity to business people and their employees who use deadly force in the face of life-threatening criminals, but it may not protect corporate owners from lawsuits. So what’s a business to do?
  • Immigration measures – While several bills described as “getting tough on immigration” were introduced, few received the attention their authors desired. We’ll recap which ones might impact Oklahoma employers.

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(Originally broadcast June 9, 2011)

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Webinar Q&A

The following are answers to some of the most frequently asked questions during the webinar. Please note that these answers are being provided for information of clients and friends of McAfee & Taft and do not provide legal advice and are not intended to create a lawyer-client relationship. In addition, we are not able to provide answers to fact-specific inquiries. Readers should not act upon the information provided below without seeking professional counsel.

Oklahoma Anti-Discrimination Act (OADA)

Q:  How does the “exclusive remedy” provision of the amended Oklahoma Anti-Discrimination Act affect EEOC filings, if at all?

A:  It doesn’t. A claimant is still required to file either an EEOC charge or a charge with the Oklahoma Human Rights Commission as a prerequisite to a lawsuit. If the EEOC wants to investigate or even bring a lawsuit based on the charge, it still can. The “exclusive remedy” provision simply precludes a “common law” wrongful termination claim, with unlimited damages.

Q:  What determines whether a discrimination claim is filed/litigated in state court or federal court? And what impact will the newly amended OADA have on these claims?

A:  If a claim is brought under the Oklahoma Anti-Discrimination Act (OADA), and not federal law, it can only be filed in federal court if the employer is a foreign corporation (incorporated under the laws of a state other than Oklahoma), and if there is at least $75,000 in alleged damages. Otherwise, it has to be filed in state court in Oklahoma. However, because of the new limitations under the OADA, it is believed that many claimants will resort to federal law claims because they allow emotional distress and punitive damages, and those claims will be filed in federal court. Federal court is, generally speaking, a better place for employers to litigate.

Q:  What is the cap on damages for federal discrimination cases?

A:  Federal law allows prevailing claimants to recover economic damages (lost wages), plus emotional distress and punitive damages in a combined amount as follows:

  • Employers with fewer than 101 employees — $50,000
  • Employers between 100 and 201 employees — $100,000
  • Employers between 200 and 501 employees — $200,000
  • Employers with more than 500 employees — $300,000

Drug & Alcohol Testing

Q:  Even though the new drug and alcohol testing law doesn’t go into effect until November 1, 2011, how early can I communicate our company’s amended policy without “jumping the gun”?

A:  There is no “too early.” You can tell them now. We recommend giving notice no later than October 1, 2011, if notifying employees before November.

Q:  Does the absence of a testing policy restrict an employer from taking disciplinary action – including termination – based on the actual observance of an employee violating its conduct policy which prohibits the use of alcohol or drugs while on the job?

A:  NO!

Q:  After November 1, 2011, does our amended drug and alcohol policy need to list all the substances we test for? What is the proper wording to use?

A:  No. You can simply state that you will be testing for the presence of drugs and/or alcohol.

Q:  Does the new law specify any changes in the drugs that can be tested for?

A:  Yes. See answer to previous question.

Q:  Suppose an employee initially tests positive and then pays for a confirmation test, which comes back negative. Can the employer request another test if it pays for it?

A:   No. The confirmed negative result ends the inquiry, and you must return the employee to work.

Q:  I thought the confirmation test requirement was removed from the Act. Was it added back in?

A:   The legislative process is like making sausage, as they say. The confirmation provision was inadvertently left in. It is expected to be deleted in future amendments. Until then, it’s the law.

Q:  If an employee tests positive for alcohol and the employer chooses to discharge the employee, what impact does that have on the employee’s ADA rights (i.e., addiction to alcohol)? In the past, employers often offered employees the option of going for treatment rather than being discharged. Will that change?

A:  Employees will have the same options they have always had. The ability to discharge for being under the influence of alcohol has not changed. The ADA prohibits discrimination based on status – i.e. for being an alcoholic. Conduct, such as coming to work under the influence of alcohol or drugs, is not protected.

Q:  What constitutes a refusal to take a drug and alcohol test? Does the refusal need to be made in writing? What about a witness’ written statement?

A:  Any refusal to participate honestly, including adulteration or flat out refusal to test, qualifies. It does not need to be in writing, but it helps if you can get an employee to sign off on the disciplinary document. If not, you need a witness statement supporting the discipline.

Q:  If an employer introduces a drug testing policy for an existing workforce, effective on or after November 1, could – or should – all current employees be required to drug test? Or, is the employer limited to new hires on a going forward basis?

A:  All employees, current and former, can be subject to testing. Except for applicant testing, you should treat all employees in a similar job or classification the same under your drug testing policy.

Q:  If a company wants to test all contractors at their worksite, what reason should be given for the testing?

A:  That the company believes that drug testing will help to ensure and promote a safer workplace for its employees and those with whom they work.

Q:  How will these changes affect drug testing for Department of Transportation-regulated employees (CDL drivers)? Will the same rules apply as for regular employees?

A:  Testing required under DOT regulations will not change.

“Make My Day” Law

Q:  Does the “Make My Day” law apply to public universities?

A:   A different law, House Bill 1652, allows people with concealed-carry permits to keep weapons in locked vehicles while parked in CareerTech campuses. The new law goes into effect on November 1, 2011.

Q:  Does the new law apply to buildings only? Can a workplace be defined as a vehicle, such as an over-the-road truck?

A:  The new law will also apply to occupied vehicles.

Q:  Can an employer restrict an employee from carrying a gun in his/her vehicle when the employee is responsible for transporting clients/patients in that same vehicle?

A:  Unfortunately, the statutory language does not address this issue. A good argument could be made that the law’s requirement the firearm be stored in a locked vehicle contemplates circumstances where a weapon would not be accessible to others. From a practical standpoint – and balancing competing risks – it makes sense for employers to prohibit employees from maintaining a firearm in a vehicle at the same time they are transporting clients or patients as part of their job.