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Archive for June, 2016

Hair Follicle Testing for Truck Drivers

Posted on: June 15th, 2016

By:  Marc Bardack and Matthew Grattan

In December 2015, President Obama signed The Fixing America’s Surface Transportation Act, a law allowing motor carriers to test a driver’s hair follicles during pre-employment and random drug screens.  Although some companies, including J.B. Hunt and Schneider National, already test their drivers using this method, DOT regulations currently require these tests to be used in conjunction with traditional urine samples.  Under the new law, motor carriers who choose to use hair follicles for drug testing must do so in accordance with scientific and technical guidelines issued by the Department of Health and Human Services.

Supporters of the law, including the American Trucking Association, note that hair follicle testing provides a more accurate analysis than traditional methods, preventing impaired drivers who could potentially pass a urine test from continuing to operate a commercial vehicle.  Hair follicle testing is also able to detect drug use over a 90-day period compared with only a 2-3 day period for urine tests and is purportedly better at revealing chronic or multiple drug use.

Groups opposing the law, including the AFL-CIO and several smaller carriers, say hair follicle testing can produce “false positive” results, leading to the potential elimination of drivers in an industry already struggling to attract and retain drivers.  With hair follicle testing, a driver can test positive based on exposure to drugs rather than ingestion.  Additionally, because the tests alert to very low concentrations, even some over-the-counter medications can mimic illegal drugs.

There is also a racial component to hair follicle testing.  Some studies have shown that darker and more porous hair retains drugs at greater rates than lighter hair.  This could lead to more positive test results for African-American than Caucasians, exposing motor carriers to claims of racial bias.

Regardless of the perceived benefits and negatives of hair follicle testing, companies planning to use this form of drug testing need to ensure their methods comply with the guidelines issued by the Department of Health and Human Services, set to be released in late 2016.  They also need to adopt policies and procedures to ensure that hair tests are evaluated accurately and consistently, so as to avoid, as much as possible, false positives and the risk of racial bias.

Police Body Cams – Look Before You Leap!

Posted on: June 10th, 2016

By:  Sun Choy

Many in the media and the public believe that law enforcement agencies should be rushing to equip every officer with a body cam.  While the focus is on the many benefits of body cams, there is little discussion about the many limitations and unanswered questions raised by the use of body cams.  In this article from The Police Chief, the author concisely addresses the many challenges associated with body cams.  These issues range from the practical – how do you ensure officers turn on the cam at the right time – to the potential for civil liability – do officers have a right to record inside private homes or other areas where there is a reasonable expectation of privacy.   The very valid point of the article is that agencies must thoughtfully address these challenges before rushing to deploy body cams.

Georgia Supreme Court Holds that Sovereign Immunity Bars Software Vendor’s Claim that State of Georgia waived the contractually Required Completion Date for the Contract

Posted on: June 7th, 2016

By:  Bart Gary and Brian Lake

A software vendor entered into a written contract with the Georgia Department of Labor (GaDOL) to develop computer software. The contract required a certain completion date and contained a stipulation that amendments to the contract had to be in writing and executed by the vendor and the GaDOL. There were no written amendments to the contract. The completion date passed without the vendor delivering a functioning software product, but the parties continued to communicate and work together for the development of the software. Finally, about nine months after the contract’s required completion date had passed, the GaDOL gave notice of termination of the contract for the vendor’s failure to deliver a functioning product that complied with the contract. The vendor sued the GaDOL for breach of contract. At trial, the Court found in favor of the GaDOL, which had argued that the vendor failed to prove that the contractual completion date had been amended or extended by a writing executed by both parties, as required by the contract. The GaDOL framed its argument in terms of sovereign immunity under the Georgia Constitution, which provides that the state’s defense of sovereign immunity is waived “as to any action ex contractu for the breach of any written contract.”  Sovereign immunity comes to us from the ancient notion that the “King (or Queen) can do no wrong.”

The vendor appealed to the Georgia Court of Appeals, who reversed the trial court and held that the parties’ course of conduct created a question for the jury to resolve as to whether the parties waived or extended that contractually required completion date or the provision that the contract could be amended only in writing. The Georgia Supreme Court accepted the case for review and reversed the Court of Appeals. Specifically, the Supreme Court reasoned:

While private parties, however, may be able to modify and extend written contracts by manifesting their intent to do so even without a written agreement, the enforceability of a contract against the state is governed by the constitution and by statute. In order for sovereign immunity to be waived with respect to contract actions against the state, the contract must be in writing. The Court of Appeals erred in extending general common law rules of contract in a manner that creates contract liability against a state agency for an agreement that does not meet the in-writing requirement for waiver of sovereign immunity.

Thus the vendor had no basis to assert that the time requirements for its services had been waived or abandoned by the GaDOL’s conduct or communications that appeared to recognize the continued existence of a contract.

The case involved a software vendor, but the decision has greater implications for public construction projects—buildings, roads, and highways—for the state and counties in Georgia. Construction contracts have the same requirements for amendments to be in writing, especially for written change orders for additional work, changed conditions, and time extensions, among other reasons. Indeed, the Supreme Court distinguished or disapproved several earlier decisions by the Court of Appeals that held that the state or county waived written modification (change order) requirements by conduct.

Of particular note, the Supreme Court abrogated the 53-year old decision of the Court of Appeals in State Hwy. Dept. v. Wright Contracting Co., 107 Ga. App. 758 (1963), which applied contracting principles to hold that where the public owner verbally orders extra work on a construction project with notice that the contractor expects additional compensation, the owner waives the contract’s requirement for a written change order and the contractor may recover compensation. Wright stood for many years to allow recovery for extra work even where the parties did not promptly attend to the required paper work. The Court reasoned that Wright was decided before the principle of sovereign immunity became a part of the State Constitution in 1974. Now those contracting with a state agency or department, a county, or other government authority need to “get it in writing” or risk losing a claim to sovereign immunity.

Georgia Dept. of Labor v. RTT Associates, Inc., Case No. S15G1780 (May 23, 2016)

Seventh Circuit Declares Class Action Waivers Unenforceable, Creates Circuit Split

Posted on: June 2nd, 2016

By:  Tim Holdsworth

Last week, the U.S. Court of Appeals for the Seventh Circuit bucked the appellate trend and held that arbitration agreements containing class and collective action waivers violate the National Labor Relations Act and are unenforceable under the Federal Arbitration Act. Every other circuit court to consider this question, including the Fifth, Second, Eighth, Ninth, and Eleventh Circuits, has held otherwise.

In Lewis v. Epic Sys. Corp., a health care software company required some employees to agree to waive their right to participate in a class or collective action for wage and hour claims. Instead, the employees had to bring these claims through individual arbitration. An employee subject to this agreement later sued the company in federal court for overtime violations under the Fair Labor Standards Act in a collective action. The company moved to dismiss the claim and compel individual arbitration. The district court denied the company’s motion, and the company appealed.

On appeal, the company argued that the arbitration agreements are enforceable because the Federal Arbitration Act creates a preference for arbitration, and that this preference overrides any rejection of the agreements by the National Labor Relations Act. Rejecting the other circuit courts and the U.S. Supreme Court’s approval of such waivers in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), the Seventh Circuit held that there was no conflict between the FAA and the NLRA.

This newly-created split among circuits could lead to a Supreme Court review. However, at the moment, class action waivers appear to be unenforceable in the states of Illinois, Indiana, and Wisconsin (states within the Seventh Circuit). Given this result, employers operating in these states should re-examine their arbitration agreements.